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 purpose.
The plaintiff’s counsel argued that the draft fourth defence was inadequate because of its failure to make admissions with respect to the composition of asbestos that BI sprayed at Charles Birks and the precise locations that were sprayed within Charles Birks. BI’s counsel referred to s 8 of the Dust Diseases Act 2005 (the Act) to say that the plaintiff was required to prove exposure to asbestos dust. The Act does not define asbestos dust. As I understood him, he argued that the composition of the asbestos spray went beyond the material fact that BI was required to plead.
Section 8 of the Act sets out the evidentiary presumptions and special rules of evidence and procedure as follows:
(1)If it is established in a dust disease action that a person (the "injured person")—
(a)     suffers or suffered from a dust disease; and
(b)     was exposed to asbestos dust in circumstances in which the exposure might have caused or contributed to the disease,
it will be presumed, in the absence of proof to the contrary, that the exposure to asbestos dust caused or contributed to the injured person's dust disease.
(2)A person who, at a particular time, carried on a prescribed industrial or commercial process that could have resulted in the exposure of another to asbestos dust will be presumed, in the absence of proof to the contrary, to have known at the relevant time that exposure to asbestos dust could result in a dust disease.
(3)The following rules apply in a dust disease action:
(a)     the Court may admit evidence admitted in an earlier dust disease action against the same defendant (including in a dust disease action brought in a court of the Commonwealth or another State or Territory);
(b)     the Court may dispense with proof of any matter that appears to the Court to be not seriously in dispute;
(c)     the Court may invite a party to admit facts of a formal nature, or facts that are peripheral to the major issues in dispute, and may, if the party declines to do so, award the costs of proving those facts against the party.
(4)If—
(a)     a finding of fact has been made in a dust disease action by a court of this State, the Commonwealth or another State or Territory; and
(b)     the finding is, in the Court's opinion, of relevance to a dust disease action before the court,
the Court may admit the finding into evidence and indicate to the parties that it proposes to make a corresponding finding in the case presently before the Court unless the party who would be adversely affected satisfies the Court that such a finding is inappropriate to the circumstances of the present case.
The statutory presumption deems the asbestos to have caused or contributed to the damage if it is established Mrs Woodward was exposed to any asbestos. Given that BI has admitted that it sprayed asbestos at the relevant place at the relevant time, and has not asserted in the defence that it will discharge the presumption against it on that issue, the composition of the asbestos spray is not a material fact that must be pleaded in the defence.
The precise location within Charles Birks of the sprayed asbestos is a matter of evidence. BI has pleaded that it cannot say precisely where, in the premises, the Spray was applied. Nothing that the plaintiff’s counsel has put in argument supports the proposition that the plaintiff is substantially prejudiced by the pleading. The plaintiff is able to take other procedural steps to obtain admissions of fact.
I do not consider that the draft fourth defence is inadequate. BI is required to plead only the relevant material facts, it is not required to plead in any more detail. The content of paragraph 2 of the draft fourth defence gives sufficient notice of BI’s position. Rule 102 sets out the power to order further particulars .
102—Power to order further particulars of party's case
(1) The Court may, on its own initiative or on application, order a party to file further particulars of its case.
(2) The further particulars are, however, to be confined to facts that are material to the party's action.
(3)     The Court will only make an order for further particulars if satisfied that—
(a)     the pleadings do not give fair notice of the party's case; and
(b)     the order is necessary to avoid substantial prejudice to the party in whose favour
the order is to be made.
(4) Unless the Court directs to the contrary, the further particulars are to be provided by substituting for an existing pleading a new pleading incorporating the further particulars required by the Court.
(5) No pleading is defective for want of particularity unless the missing particulars would be ordered under this rule.
The plaintiff has not established that he will suffer substantial prejudice as a consequence of the way the draft fourth defence is pleaded. I am satisfied that BI’s pleading is satisfactory and in compliance with the rules. BI cannot be compelled to make admissions by way of pleadings.
The Application is dismissed. I give leave for BI to file its draft fourth defence within 14 days. I will hear the parties as to the costs of this application if they cannot agree.