Woodward v David Jones - [2013] SADC 159

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
WOODWARD v DAVID JONES & ANOR
[2013] SADC 159
Judgment of Her Honour Judge Farrell
25 November 2013
PROCEDURE
Particulars – whether defence sufficient.
Further particularity of a defence sought - operation and scope of 6R 102 and related rules - need for the plaintiff to show significant prejudice - extent of particulars required for exposure to asbestos, plaintiff’s application dismissed – operation of the presumption in s 8 Dust Diseases Act
Morris v Resi [2011] SADC 70; Marini v MLH Insurance Brokers P/L & Ors (2004) 237 LSJS 288; Stanke & Sons P/L v O'Meara (2007) 98 SASR 450; Wunda Joinery P/L (In Liq) & Anor v Wunda Projects Aust P/L & Ors [2007] SASC 301, applied.

WOODWARD v DAVID JONES & ANOR
[2013] SADC 159

The plaintiff seeks an order that BI (Contracting) Pty Ltd, (BI), the second defendant, give further and better particulars of its third defence in a Dust Diseases action. BI opposes the order sought.
The authorities that the parties have referred to in this matter take the argument no further than this; the nature of the material facts required to be pleaded must give fair notice of the case and that depends on the cause of action and the circumstances of the particular case.
The relevant paragraph of BI’s third defence filed on 18 March 2013 sets out as follows:
2. In respect of paragraph 7 of the Claim, the second Defendant admits that it carried out sprayed asbestos operations at the Charles Birks Rundle Street.
Without a doubt it is a scant pleading. It also refers to the wrong paragraph of the statement of claim. However shortly before the application for further and better particulars was to be heard by me BI attempted to resolve the problem with its pleadings by preparing a draft fourth defence and sending it to the plaintiff’s solicitors.
When the matter came on for hearing before me the plaintiff’s counsel sought initially to prevent BI from tendering its draft fourth defence in the course of the argument. He later consented to that document being before me. The argument was then effectively limited to whether or not BI’s draft fourth defence is sufficient.
The relevant paragraph of BI’s draft fourth defence sets out as follows:
2.1 Admits that it applied sprayed asbestos (“Spray”) at Charles Birks, Rundle Street (“Premises”); and 2.2 Says that the Spray was applied at the Premises in or around 1960; and 2.3 Says that it cannot say precisely where, in the Premises, the Spray was applied; and 2.4 Says it is unable to provide specific details of the composition of the Spray as used at the Premises; 2.5 Says the Spray may have contained blue asbestos.
Various affidavit evidence annexing correspondence between the parties was tendered before me. I accepted the tender of those affidavits in order to identify the scope of the dispute between the parties relating to the particulars sought and for no other…

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] SADC 159
Decision Date: 25 November 2013

CaseChat Overview and Summary

The matter before the court was an application by the plaintiff, Woodward, seeking further particulars from the defendant, David Jones, regarding their defence in an asbestos exposure claim. Woodward argued that the defendant's defence was insufficiently particularised and sought more detailed information to prepare a proper response. The case was heard in the Supreme Court of New South Wales. The central legal issues revolved around the operation and scope of rules 6R 102 and related provisions of the Uniform Civil Procedure Rules, particularly the necessity for a plaintiff to demonstrate significant prejudice to warrant an order for further particulars. Additionally, the court had to consider the extent of particulars required in an asbestos exposure case and whether the plaintiff had established the need for additional information.

The court examined the applicable legal principles, emphasising that the plaintiff must show significant prejudice to justify an order for further particulars. The court noted that the rules are designed to promote efficient litigation and avoid unnecessary delays, and that particulars should be sufficient to enable the defendant to understand the case against them and to prepare a defence. The court also considered the presumption under section 8 of the Dust Diseases Act, which shifts the onus of proof in certain asbestos-related claims. The court concluded that Woodward had not demonstrated the requisite significant prejudice and that the existing particulars provided by David Jones were adequate for Woodward to prepare a defence. Therefore, the court dismissed Woodward's application for further particulars.

Orders