Bullen v G J James Extrusion Co Pty Ltd [2000] QDC 48

DISTRICT COURT OF QUEENSLAND CITATION: Bullen v G James Extrusion Co Pty Ltd [2000] QDC 048 PARTIES: TERENCE GERARD BULLEN Plaintiff And G JAMES EXTRUSION CO PTY LTD (ACN 010 828 234) Defendant FILE NO/S: D4788 of 1998 DIVISION: PROCEEDING: ORIGINATING COURT: District Court DELIVERED ON: 31 May 2000 DELIVERED AT: Brisbane HEARING DATE: 29 May 2000 JUDGE: Robertson DCJ ORDER: Defendant’s Application I order: (i) the plaintiff have leave pursuant to Rule 470 of the Uniform Civil Procedure Rules to amend the plaint by omitting the words “(but not limited to)” in para. 5(a) (ii) otherwise the application be dismissed. Plaintiff’s Application The defendant’s solicitors execute and return to the solicitors for the plaintiff the request for Trial date within 7 days. CATCHWORDS: Application for further and better particulars, cross application to dispense with request for trial date – Rules of pleading UCPR 149 – philosophy behind UCPR, Rule 5., s.182C (6) Workers Compensation Act 1990. CASES CITED: COUNSEL: The Queen v The Associated Northern Collieries (1910) 11 CLR 739 at 740 Mr W B Campbell for the Defendant/Applicant -- 1 of 8 -- 2 Mr P De Plater for the Plaintiff/Respondent SOLICITORS: Bain Gasteen for the Defendant/Applicant Watling Roche Lawyers for the Plaintiff/Respondent [1] There are two applications before the Court. The plaintiff seeks an order that a request for trial date, as required by Rule 467 Uniform Civil Procedure Rules, be dispensed with, and the Defendant’s application seeks further and better particulars of the plaintiff’s claim. The Defendant says therefore: it is not “ready for trial” in the sense in which that expression is used in Rule 469 Uniform Civil Procedure Rules. BACKGROUND [2] By Plaint No 1788 of 1998, filed 11 November 1998, the plaintiff claims, inter alia, damages as a result of the negligence of the defendant. The plaintiff’s claim is that on 15 August 1996, whilst employed by the defendant, he was injured in the course of operating an overhead crane while standing on the tray of a truck and moving certain cases from the front of the tray of the truck to the rear. In the course of moving one of the trays by using the overhead crane the plaintiff was knocked from the tray and injured. The defendant denies negligence and alternatively alleges contributory negligence by the plaintiff. [3] Para 5 of the plaint sets out to particularise the defendant’s negligence: “(a) failing to provide, maintain and enforce any or any safe proper system of work and in particular (but not limited to) the following:- (i) failing to have in place a system of work which would be enable (sic) the plaintiff to operate the overhead crane and -- 2 of 8 -- 3 adequately re-position the said cases without standing in the tray of the truck; (ii) failing to have in place a specific direction to employees such as the plaintiff that they should not stand in the tray of the truck whilst operating the crane or while carrying out tasks such as that carried out by the plaintiff on the day of the injury; (iii) failing to have available an alternative system of work such as providing a platform or mobile scaffolding on which the plaintiff could have stood to operate the crane (and which is now used by the defendants) which would have enabled the operator of the crane to have a proper view of the cases and the tray of the truck whilst he operated the crane but still be in a position of safety; (iv) failing to have in place a system of work which would have ensured that the first person who placed the cases in the tray of the truck had done so correctly in that they should have initially been placed at the rear of the truck and hence the task which was undertaken by the plaintiff on the day that he had suffered injuries would not have been necessary; (v) failing to have in place a system of work which included adequate supervision of tasks undertaken by employees such as the plaintiff and adequate assessment of tasks undertaken by employees such as the plaintiff in circumstances where adequate supervision and adequate assessment by the defendant would have eliminated or reduced the risk to employees such as the plaintiff by ensuring that employees in the plaintiff’s position did not remain in the tray of the truck whilst carrying out tasks similar to that carried out by the plaintiff (sic) he suffered injuries. (vi) failing to have in place a system of work which would have ensured that adequate numbers of staff were available to assist the plaintiff in the operating of the crane by acting as observers or lookouts and who could have provided warnings dangerous situation arising in the movement of such cases by the said overhead crane ...” [4] The defendant’s amended Entry of Defence was filed on 17 February 1999 and a request for particulars of the plaint was not made until 25 November 1999. On the same day, the defendant delivered to the plaintiff a Notice to Admit facts pursuant to Rule 189 Uniform Civil Procedure Rules. The plaintiff served a notice disputing many of these facts, but not item 64: That the load grated against cleats on the adjoining case as it rose, and 71: The case became stuck on the cleats of the adjoining case. Pursuant to Rule 189 (2) Uniform Civil Procedure Rules, the -- 3 of 8 -- 4 plaintiff is taken to have admitted such facts for the purposes of this proceeding. On 20 January 2000, the plaintiff filed further and better particulars of his plaint. The defendant’s request of 25 November 1999 had sought further and better particulars as to para 4, 4(g), 5(a), 5(a)(i), (ii), (iv), (v) and (vi) of the plaint. The plaintiff’s further and better particulars responded to a number of the requests, but, in relation to the requests dealing with 5(a) (v) and (vi) (Requests 7 and 8), the plaintiff partially responded, but essentially refused on grounds that the requests were not proper. [5] In relation to the request relating to para 5(a) of the plaint (Request 3), the plaintiff refused to answer 3(b) on the ground that it seeks evidence. By letter dated 11 February 2000 the defendant’s solicitors expressed dissatisfaction with some aspects of the plaintiff’s response. Mediation was then undertaken unsuccessfully and, on 28 March 2000, the plaintiff’s solicitors submitted a request for trial date to the defendant’s solicitors. There was no response and on 14 April 2000 the plaintiff’s solicitors advised that an application would be made to the court, if the signed request was not received within (3) days. On 18 April 2000, and, in compliance with Rule 444 of the Uniform Civil Procedure Rules, the defendant’s solicitors advised that it would apply to the court for an order that the plaintiff provide further and better particulars of his plaint. Unfortunately, the solicitors did not, in their reasons for seeking relief in para (d) of their letter, relate their complaints to either the paragraphs in the request or those in the plaintiff’s further and better particulars filed on 20 January 2000. On 19 April 2000, the defendant’s solicitors advised that it would not return the request for trial, because of the outstanding particulars. -- 4 of 8 -- 5 THE APPLICATIONS [6] As both counsel suggest, the appropriate course is to deal with the defendant’s application first, as it will determine the plaintiff’s application. Both counsel conceded that otherwise the matter was ready for trial. At the outset, Mr Campbell for the defendant, made it clear that his application was confined only to the broad nature of the pleading in para 5(a) and to the use of the words “but not limited to” and para 5(a) (v) and (vi). Clearly, the letter from the defendant’s solicitors to the plaintiff’s solicitors, dated 18 April 2000, casts a much wider net; and not surprisingly, Mr de Plater came prepared to justify fully the further and better particulars filed on 20 January 2000. As to para 5(a), Mr de Plater properly conceded that the pleading did not comply with Rule 149 of the Uniform Civil Procedure Rules, as it is non-specific and open-ended, and I will grant the plaintiff leave, pursuant to Rule 470 Uniform Civil Procedure Rules, to amend its plaint by omitting these words “(but not limited to)” in para. 5(a). The plaint was filed under the old Rules. In passing, I observe that it will be necessary for pleadings to be much more concise than this, if they are to comply with Rule 149 of the Uniform Civil Procedure Rules. [7] I now turn to Mr Campbell’s arguments that the particulars supplied in relation to para 5(a) and 5(a) (v) and (vi) of the plaint are inadequate. His argument relates to an issue said to be raised for the first time in an engineering report annexed to the defendant’s solicitor’s affidavit (GSC8), supplied on 23 September 1999 to the Plaintiff’s solicitors. The defendant’s solicitor, Mr Claire, sets out its concerns in this regard in paragraph 7 – 10 of his affidavit filed 25 May 2000. Mr de Plater submits, correctly in my view, that the comments made by the engineer, particularly -- 5 of 8 -- 6 on p.6 of the report, must be read subject to the admissions made by the plaintiff to which I have earlier referred. Mr de Plater submits that it should, therefore, be obvious that the plaintiff’s case does not depend on any allegation of fact that the truck driver had pushed on the case from his end or had otherwise contributed to the incident. Mr Campbell’s submission in relation to 5(a) (v) and (vi) is that the pleadings are too broad and the defendant is entitled to more particularization. I have to say that upon careful analysis, most of the requests set out in Request 7 (relating to paragraphs 5(a)(v)) and 8 (relating to paragraph 5(a)(vi)), are not proper requests in that they do seek hypothetical information, for example, as to what the plaintiff asserts should have been done to provide a safe system of work. Request 7(a) clearly seeks to interrogate the plaintiff as to the issue of contributory negligence raised in the amended defence. [8] As I have observed, the pleading under consideration here was filed under the old rules, and, in my opinion, lawyers will have to respond to the requirements of Rule 149 of the Uniform Civil Procedure Rules in the future. The rules of pleadings set out in the Uniform Civil Procedure Rules will require lawyers to be diligent in concisely and specifically pleading their case. [9] The purpose of particulars is well understood. In The Queen v The Associated Northern Collieries (1910) 11 C.L.R. 738 at 740 Isaacs J. said: “I take the fundamental principle to be that the opposite party shall always be fairly apprised of the nature of the case he is called upon to meet, and shall be placed in possession of its broad outlines and the constituative facts which are said to raise his legal liability. He is to receive sufficient information to ensure a fair trial and to guard against what the law terms surprise, but he is not entitled to be told the mode by which the case is to be proved against him”. -- 6 of 8 -- 7 [10] Rule 157 of the Uniform Civil Procedure Rules takes up similar principles, and, in this case, as Mr de Plater correctly observes, the request for further and better particulars was delivered many months after delivery of the amended defence, so it is not as if the defendant was unable to plead, as contemplated by Rule 157 (b) of the Uniform Civil Procedure Rules. [11] Having reviewed the pleadings, which include the further particulars, in my opinion, the issues are clearly defined and neither party will be taken by surprise. [12] It is very important for lawyers to appreciate and apply the philosophy underpinning the new Rules, set out in Rule 5 of the Uniform Civil Procedure Rules: 5 (1) The purpose of these rules is to facilitate the just and expeditious resolution of the real issues in civil proceedings at minimum expense. (2) Accordingly, these rules are to be applied by the courts with the objective of avoiding undue delay, expense and technicality and facilitating the purpose of these rules. ....” [13] The issues here are well defined. It is a straightforward case. Mediation has been unsuccessful. The matter is clearly ready for trial. I do not suggest that the defendant’s solicitors have sought to unreasonably delay the trial, rather it should be understood that undue technicality and recourse to interlocutory proceedings which are not necessary, will be discouraged by the courts in compliance with the stated philosophy underpinning the Uniform Civil Procedure Rules. [14] The orders are as follows: -- 7 of 8 -- 8 In relation to the defendant’s application: I order: (i) the plaintiff have leave pursuant to Rule 470 of the Uniform Civil Procedure Rules to amend the plaint by omitting the words “(but not limited to)” in para. 5(a) (ii) otherwise the application be dismissed. [15] In relation to the plaintiff’s application: I order that: (i) The defendant’s solicitors execute and return to the solicitors for the plaintiff the request for Trial date within (7) days. [16] Ordinarily the plaintiff would be able to successfully apply for his costs of both applications Both counsel have referred me to Section 182 C (6) of the Workers Compensation Act 1990 (Qld) which provides that in circumstances where a worker is seeking damages at common law for his injuries suffered after 1 February 1996: “an order as to costs for an interlocutory application may be made only if the court is satisfied that the application has been brought because of unreasonable delay on the part of one of the parties” [17] It follows that there will be no order as to costs. -- 8 of 8 --