| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : WILLIAMS -v- COMMONWEALTH OF AUSTRALIA [2003] WADC 256 CORAM : REGISTRAR KINGSLEY HEARD : 24 APRIL 2003 DELIVERED : 19 NOVEMBER 2003 FILE NO/S : CIV 2877 of 2001 BETWEEN : SERENA LEE WILLIAMS Plaintiff
AND
COMMONWEALTH OF AUSTRALIA
Defendant
Catchwords: Practice - Application for further and better particulars of statement of claim - Turns on its own facts
Legislation: Nil
Result: Application allowed in part
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Representation:
Counsel:
Plaintiff : Mr J J Sheldrick
Defendant : Mr J R B Ley
Solicitors:
Plaintiff : D'Angelo & Partners
Defendant : Australian Government Solicitor
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Nil
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1 REGISTRAR KINGSLEY: The defendant has brought an application seeking orders that time be enlarged and that the plaintiff answer the defendant's request for further and better particulars of the statement of claim.
2 The plaintiff pleads she was employed as Mess Manager at the defendant's Air Force Base at Pearce. At a graduation function for the No 174 Pilot's Course, the plaintiff alleges that four officer cadets, whose identities are not known, lifted her by each cadet grabbing an arm and a leg. The plaintiff alleges she was dropped awkwardly causing injury. The plaintiff alleges a fifth officer cadet, whose identity is not known, then poured beer over her. 3 After an unsuccessful attempt to strike out the statement of claim the defendant sought particulars of the statement of claim. The request by the defendant is out of time. Deputy Registrar Hewitt, on 17 December 2002, ordered the defendant to file and serve any request for further and better particulars of the statement of claim within 28 days. The request was filed on 13 March 2003. 4 In explanation for the delay the defendant's solicitor, Paul Shanahan, deposes that his instructing officer is in Canberra and that counsel's advice has to be considered by his instructor before the request could be issued. The plaintiff's counsel makes the good point that the issues raised in the request are substantially the same as those raised in the defendant's application to strike the statement of claim. Thus there ought be no reason why the request was delayed. 5 Whilst there has been delay, part of the request is directed to issues that go to the defendant's understanding of the case. In answering part of the request it will, in my opinion, limit the element of surprise. In my opinion the issue of delay is best resolved by giving the plaintiff's costs of the application. The defendant seeks the indulgence of the Court because it failed to comply with an order of the Court. Further, orders of a Court are meant to be observed and any failure to do so must attract a sanction. 6 Request 1 is directed to the identification of the officer cadets. To identify the physical appearance of each cadet will not in my opinion be of any assistance, or at best, limited assistance to the defendant. However, describing the clothing and any name by which the plaintiff knew the officer cadets may assist. However request 1(d) goes beyond the bounds of a proper request. That request goes to the evidence by which the plaintiff seeks to prove the case.
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7 Request 2 seeks the same particulars in relation to the fifth cadet as request 1. For the same reason request 2(a) and 2(d) are disallowed and request 2(b) and 2(c) are allowed.
8 Request 3 seeks particulars of how the defendant is vicariously liable for the actions of the cadets and how the defendant encouraged and permitted a tradition and culture of excessive drinking. That request in my opinion is directed wholly to evidence and therefore is disallowed. 9 Request 4 of the request seeks particulars of particulars. In Par 13 of the statement of claim the plaintiff pleads a duty of care owed by the defendant to the plaintiff. Paragraph 14 of the statement of claim then goes on to particularise how the duty arose. At par 14.2 and par 14.3 the plaintiff particularises the duty of care in terms of the defendant being responsible for the safety of persons. Paragraph 14.2 is a conclusion only. Whilst request 4 is seeking particulars of a particular, in this context the request is appropriate. The request is directed to the issue of duty of care. 10 Request 5 is directed to the issue of supervision, identification of a witness and how the function ought to have been supervised and how the behaviour of the officer cadets deteriorated. 11 I am of the opinion the request goes beyond what is proper. Request 5(a) is directed to the evidence the plaintiff is to lead: as is request 5(b). Request 5(c) seeks the identification of a witness. Request 5(d) requires the plaintiff to reorganise the defendant's system of work which is an improper request. Request 5(e) is directed to a particular. 12 The material fact is the lack of supervision and the particular is directed to that point. It is not the deterioration of the behaviour that is being particularised, it is the lack of supervision. 13 For these reasons the plaintiff is to answer request 1(b) & 1(c), request 2(b) and 2(c) and request 4. As previously stated the defendant is to pay the plaintiff's costs of the application. |