Civil & Civic Pty Ltd & Lend Lease Development Pty Ltd v Arkinstall & Ors [1992] QSC 135

TRAl'1SCR1PT OF PROCEEDINGS State Rep:>rting Bu.-·uu, 4th F1oor, The Law Courts, . George Street, BRJSBANE. 0. 4000 Tel. (Oi) 22'1.4360 (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the wrinen authority of the Director, State Reporting Bureau.) SUPREME COURT OF QUEENSLAND (-,. COMMERCIAL CAUSES JURISDICTION ( WHITE J No 2115 of 1991 CIVIL & CIVIC PTY LIMITED and LEND LEASE DEVELOPMENT PTY LIMITED and DARYL ARKINSTALL and M.P.N. CONSULTANTS PTY LIMITED and '• SOIL SURVEYS AND EXPLORATION PTY LTD BRISBANE .. DATE 3/04/92 JUDGMENT 1 First Plaintiff Second Plaintiff First Defendant Second Defendant -- 1 of 9 -- 030492 JUDGMENT HER HONOUR: Thfs action was entered on the building and engineering list of commercial causes on 4 March 1992. The statement of claim was delivered on 13 December 1991 and the time limited for the delivery of defence expired on 27 10 February 1992. The first defendants have delivered their 20 30 40 50 60 defences within time. At the listing hearing the second defendant raised difficulties with pleading its defence because of alleged problems with the statement of claim. This application by leave is to strike out the statement of claim or, alternatively, to order further and better particulars. The striking out aspect of the summons was not seriously pursued by Mr Doyle, solicito~ who appeared for the second defenda~t. The action is brought by the first plaintiff who was contracted by the second plaintiff, the owner of the Kenmore Shopping Centre, to carry out exte~sive renovations and building works at the shopping -centre, and by the second plaintiff against the first defendant as consulting engineers retained to carry out, inter alia, earthwo~ks at the site, and against the second defendantsas geotechnical engineers. The second defendant carried out preliminary investigations and gave geotechnical advice. Earthworks were carried out inter alia at the back of the shopping centre which, in fact, is a cut in a hillside. After heavy rain on 25 April 1989 a land slip caused extensive damage to the shopping centre. Rectification work was carried out, for which the plaintiffs claim over $2m in damages. 2 ! I 10 20 0 30 40 50 60 -- 2 of 9 -- ]' 10 20 ( c 30 40 50 60 030492 JUDGMENT The statement of claim is lengthy. As against the second defendant the claim is pleaded, in broad tenns, that the second defendant was careless in carrying out its investigations of the site, such that the advice which it gave led to the construction of the slope and the batters behind the shopping centre, which did not withstand the action of heavy rain leading to consequent damage. The question of particulars has most recently been considered by Byrne J in NRNQ (a limited partnership) v. MEQ Nickel Pty Ltd (1991) 2 QdR 592 at pp 594 and 5, and I cannot do better than to ·repeat what His Honour there said: "Particulars promote the fair and efficient conduct of litigation. In Bailey v. FCT (1977). 136 CLR 214 Gibbs J said (at 219) of them: 'They define the issues to be tried and enable the parties to know what it will be necessary to have available and to avoid taking up time with questions that are not in dispute. On the one hand they prevent the injustice that may occur when a party is taken by surprise; on the other they save expense by keeping the conduct of the case within due bounds.' see also Astrovlanis-Compania Naviera SA v. Linard [1972] 2 QB 611 where (at 620) where Edmund Davies, LJ approved this description of the objectof particulars in the Supreme Court practice (1970) note 19/12/2: 'To carry into operation the overriding principle that the litigation between the parties, and particularly the trial, should be conducted fairly, openly and without surprises and incidentally to reduce costs.' In recognition of the advantages they confer, particulars are now ordered more freely than in former years. In Palmos v. Georgeson [1961] QdR 186 Stable J (at 192) adopted as appropriate to practice in Queensland the view of the New South Wales Full Court in Philliponi v. Leithead (1959) 59 SR (NSW) 352, 358: 'During the last century it is apparent that the approach of the courts to any question as to ,-.. .... ~ n .. ;...,•-:or (')kt 3 10 20 30 40 50 60 -- 3 of 9 -- 10 . 20 30 40 50 60 030492 JUDGMENT whether particulars should be furnished-or not hasundergone an appreciable change. With the passage of the years the tendency has been to abandon the narrow view which may·be detected in earlier cases and to be more liberal-in such matters .... Generally speaking, justice will be more readily and speedily attained if· each party is fully aware of the precise nature of -the allegations made by · the other. ' ' These days particulars may require the disclosureof information in such detail as to indicate the mode by which a case may be proved. As an example, where the pleading alleges an oral contract, particulars are commonly ordered of the identity of the persons who concluded the contract and of the date and place at which it was made. And that particulars will disclose the evidence to be adduced at trial is not of itself a sufficient justification for refusing them: Wooton v . Sievier [1913] 3 K.B. 499, 503. The modern practice is concisely stated by the learned author (Sir Jack I.H. Jacob) of·Bullen and Leake and Jacobs Precedents of Pleadings (12th ed., 1975) at p 115: 'Where the information asked for is clearly necessary to enable the applicant properly toprepare for trial, or where in other respects the application is a proper one, the information must be given even though it discloses some portion of the evidence on which the other party proposes to rely at the trial. ' · See also Pinson v. Lloyds and National Provincial Foreign Bank Limited [1941] K.B. 72, 75. The openness afforded by adequate particulars · facilitates effective resolution of the dispute. Discovery becomes more efficient. It need be directed only to the issues as they are refined by the particulars: Yorkshire Provident LifeAssurance Co. v. Giibert [1895] 2 Q;B. 148. This is a consideration of growing importance as complex transactions continue to spawn a substantial volume of recorded information. Particulars may beneficially impact on other interlocutory steps. The need for interrogatories, with their attendant delay and expense, may be diminished. Informed attention tothe oral testimony and other material likely to be required at the hearing will also aid trial pre~aration. A purpose of particulars is 'to indicate to the party who ask for them how much of the range of his possible evidence will be relevant and how much irrelevant to those issues': Esso Petroleum Co .· Ltd.· V. Southport Corporation [1956] A.C. 218, 241 per Lord Radcliffe. It is even-possible that an early investigation of the 4 1 ' 10 20 30 40 50 60 -- 4 of 9 -- ( / { \_ ,_.,.-.... I I 1. 10 20 30 40 030492 JUDGMENT pleader' s own case. and the better appreciation o_f. an opponent's case ·achieved by particulars may help the parties to a settlement. Such a fortuitous advantage accords with the laws favouring reasonable compromise: a traditional concern because, although 'as a means of resolution of civil contention, litigation.is certainly preferable. to personal violence', 'it is not intrinsically a desirable activity': Ampthill Peerage case [1977] A.C. 547, 575 per Lord Simon of Glaisdale. Some cost will of course be incurred in the collation of the information needed to frame particulars. But if the litigation proceeds,. the expense is only accelerated. There is a chance that applications for particulars could be used oppressively." Those observations of His Honour's must be kept in mind here, but against the fact that this action has been listed as a commercial cause at the request of the plaintiffs.and without opposition by the second defendant so as to gain the benefit of the provisions of the Commercial.Causes Act. There are some defects in the particulars, in my opinion, . ' but if one reads the whole of the pleading without reference to the particulars a clearer picture emerges and the action is pleaded with all the necessary elements. Many of the particulars provided are expressed in turgid.prose accounted for, no doubt, because the pleader has extracted verbatim passages from engineering reports. It would have been, I think, much better to have expressed the underlying contentions in plainer language. That having .been said, I would also like to add that.the. issues are plain enough to me 10 20 30 40 5° within the pleading. Mr Doyle would no doubt have pleaded .I 50 differently but generally the pleading which has been delivered tog~ther withi- the particulars, ana the amendments which have been foreshadowed is not embarrassing and is certainly able to be responded to by way of defence, and the application to strike out o:ught 60 60 5 -- 5 of 9 -- 030492 JUDGMENT to be dismis.sed. · I shall order, however, some reconsideration of some of the particulars. Because they are not extensive it seems preferable now that the delivery of the defence awaits 10 consolidation of the further particulars with the existing 10 pleading. This, in the end, I think will be a more convenient course~ Further, the provision of the experts' reports will, I am confident;.· narrow the issues between the parties as .is customary in this jurisdiction and a 20 conference between those experts, which seems a likely 2.0 future course here, will be of further benefit to the parties. I do not propose to comment on each paragraph .of the 30 statement o·f claim. or of the particulars said to be 30 insufficient. I will only deal wit.h those where further or other pleadings are needed, or the supply of further particulars should be given. Some of these amendments have , already been conceded .-in- the submissions, either that they 40 will be or have been. provided, or that the second defendant 40 does not press further for them. Paragraph 9 of the statement of Claim should have deleted from it the expression, "partly contained in or". 50 50 Paragraph 22(a) and (b) is a key paragraph to the .pleading and concerns the breach of the duty or contract; It must be said that it is not felicitously expressed but there is no j reason to require reparticularisation except in the -----=60~·-T----------------------------------------~------------·----------~----- 60 6 Ol I 01 -- 6 of 9 -- I 030492 JUDGMENT fol!owing matters. With respect to (iii) the orange/brown mottled silkstone area should be marked on a plan in an easily identifiable form. (vii) the reference to Phillipa Street must be deleted 10 unless further particulars·of that allegation are provided. 10 (viii) this allegation of breach is obscure even though,_, in Mr Lennon's submissions,it became much clearer what the plaintiffs were alleging. It needs to be recast to make 20 ' ' ( . some sense of the concept of safety factor. It may indeed 20 be the case that the plaintiffs, having canvassed this matter in submissions yesterday and the day previously, may care to do it in a different form than that ·in which ib.appears presently as a particular. That ties in with paragraph 30 22(b) and in my view it is appropriate for the plaintiffs to plead what advice ought to have been given as to the appropriate angle of slope, and I would so order it. Paragraph 27; as I understand it, is to be amended so as to 40 delete the· word "undertook" and to insert in its stead "gave \ 40 advice for reward". It will be necessary to amend the further particulars which have been provided with respect to that paragraph in a consequential fashion. 50 Paragraph 37 is another important paragraph in the pleading 50 setting out, as it does, breac~es by the second defendant. Paragraph (a) of the particulars refers to the I batter slopes and I would order that those batter slopes be [ 60 identified by marking on a plan. As to para. (f), I would I ~60 7 -- 7 of 9 -- ( 030492 JUDGMENT 'i,_ order that that paragraph be.reparticularised in language clearer than that which appears there to express the matters which were set out by Mr Lennon in his submissions. Paragraph (g): I order that the plaintiffs mark on a plan 10 the place where the area is located where the additional 10 bore hole ought to have been drilled. Paragraph 40 sufficiently, in my view, links the breaches complained of to the Anzac Day slip and I will not order 20 further particulars of that relationship, which seem· to 20 01 cause Mr Doyle some difficulty. I I As to paragraph 42 of the statement of claim,I am persuaded 01 in the end that the objection to this paragraph and to its 30 particulars is a matter for defence pleading and then, no 30 doubt, for discovery. I can see no surprise lurking within those particulars except perhaps the figure which might be thought of to be quite surprising, but perhaps in a () different way than we use that expression in a pleading 40 sense. 40 l) I Paragraph 43 is insufficiently particularised and it is ordered that the plaintiff give particulars of how the liability arose by reference to the head contract clauses. 50 Those are the only particulars which I would order. 50 The formal order will be that the plaintiffs deliver to both the first and the second defendants a consolidated pleading incorporating any amendments to the pleading itself, the 60 60 8 -- 8 of 9 -- 030492 JUDGMENT further particulars and the· further particulars that have been ordered to be provided by 10 April. The second defendant to deliver a defence by 24 April. 10 10 Reply within 14 days of delivery of the defence. I should perhaps give some further directions about discovery. I would have thought 21 days after the close of pleadings would have been sufficient. ( \ 20 20 In view of the fact that there have been a number of orders made with respect to the pleadings and that certain of them were made, as it were, on the run; and doing the best I can, it seems to me that the plaintiffs should pay one half of 30 30 the second defendants costs of and incidental to the application to be taxed and that the balance of the costs of the summons should be each party's costs in the cause. 40 40 50 50 I i 60 ----~------J 60 G 214-Govt. Printer, Old. 9 -- 9 of 9 --