F v Dobbs & Hansen-Bode Gymnastics Club [2004] QDC 525

1 [2004] QDC 525 DISTRICT COURT CIVIL JURISDICTION JUDGE ROBIN QC No 5826 of 2001 F Plaintiff and GEOFFREY DOBBS and HANSEN-BODE GYMNASTICS CLUB and KERRI HANSEN-KOFOED and JOHN HANSEN- KOFOED First Defendant Second Defendant Third Defendant BRISBANE ..DATE 25/11/2004 ORDER CATCHWORDS: Uniform Civil Procedure Rules r 161, r 169 - whether plaintiff's request for further and better particulars of defence (made after 2 years and 4 months) should be rejected on account of delay - no request for trial date signed - not too late for particulars. categories. You may wish to seek legal advice before giving others access to the details of any person named in these proceedings. WARNING: The publication of information or details likely to lead to the identification of persons in some proceedings is a criminal offence. This is so particularly in relation to the identification of children who are involved in criminal proceedings or proceedings for their protection under the Child Protection Act 1999, and complainants in criminal sexual offences, but is not limited to those -- 1 of 6 -- 25112004 T18/BLS4 M/T CMS133/2004 (Robin DCJ) 2 ORDER 1 10 20 30 40 50 60 HIS HONOUR: This is an interesting application for further and better particulars of the defence which is filed on the 6th of March 2002 in proceedings which must be something of a nightmare to the third defendants who are the respondents. The plaintiff who is now of age seeks to make the third defendants vicariously liable for the consequences to her of inappropriate sexual actions of the first defendant who was employed in a gymnasium allegedly controlled by the third defendants. Those things happened in the early 1990s. Paragraph 17 of the defence is: "17 Further, the Third Defendants say that in or about 1991 or 1992 the Third Defendants became aware that:- (a) the First Defendant had developed a friendship with the parents of the Plaintiff; (b) the relationship between the First Defendant and the parents of the Plaintiff included the parents of the Plaintiff allowing the First Defendant to pick up and take the Plaintiff and her sister home on occasions; (c) an incident had occurred at the home of the parents of the First Defendant at which it was alleged the First Defendant took some photographs of the Plaintiff and her sister doing gymnastics; (d) an allegation had been made by the parents of the Plaintiff to Queensland Police Service that the First Defendant at their home had requested the Plaintiff either alone or with her sister to take her clothes off in a room so that he could take photographs of either the Plaintiff alone or with her sister; (e) as a result of being informed of the allegation raised in the preceding sub-paragraphs, the Third Defendants immediately dismissed the First Defendant from their employ." -- 2 of 6 -- 25112004 T18/BLS4 M/T CMS133/2004 (Robin DCJ) 3 ORDER 1 10 20 30 40 50 60 It might be noted that the statement of claim does not contend that anything untoward happened at the gymnasium, rather it happened at social events attended by the first defendant and not only the plaintiff but also her sister and perhaps other young patrons of the gym. The request for particulars was made by letter of 14th of July 2004 and it asked for the following further and better particulars, "(a) How did the Third Defendants become aware of the matters referred to in paragraph 17(d) of the Third Defendants' defence; (b) When did the Third Defendants become aware of the matters referred to in paragraph 17(d) of the Third Defendants' defence; (c) Were the matters communicated to the Third Defendants as referred to in paragraph 17(d) of the Third Defendants' defence communicated to them wholly orally, wholly in writing, or partly oral and partly in writing; (d) If the communications were wholly oral, then state: (i) Who spoke; (ii) When they spoke; (iii)The words that were used, or the meaning and the effect of the words if the exact words cannot be recalled; (e) If the communications referred to in 2(d) above were wholly or partly in writing, identify each such writing by reference to your list of disclosure or otherwise, and provide a copy thereof. (f) With respect to paragraph 17(e) of the Defence; (i) When was the First Defendant dismissed from the employ of the Third Defendants; (ii) How was the First Defendant dismissed from the employ of the Third Defendants; -- 3 of 6 -- 25112004 T19-20/NW1 M/T CMS134/2004 (Robin DCJ) 4 ORDER 1 10 20 30 40 50 60 (iii)Provide by way of further and better particulars a copy of any writing used for the purposes of dismissing the First Defendant from the employ of the Third Defendants. " By this stage, although the respondents had used a solicitor to lodge the notice of intention to defend and defence, they appear to have been representing themselves. Follow-up correspondence from the plaintiff's solicitor, in particular a "rule 444" letter of 27th of October 2004, elicited the following response from Ms Kerri Kofoed: "I refer to your letter dated 27th October 2004 and your request of further particulars dated 14th July 2004. Whilst I am not unwilling to furnish you with further and better particulars in this matter I am of the opinion that the pleadings in this case have already closed in terms of rule 169. The questions that you have asked may be just as well be asked during the trial. I am of the opinion that an application to further compel us to supply you with these further particulars will constitute an abuse of process. If you are in disagreement with my submissions, please do not hesitate to contact me. " Mr Marais of counsel represents the third defendants in this application. Consistently with the attitude taken in his client's letter, he raises no objection to the request for particulars. Even if pedantic arguments were open in respect of their form, it seems to me perfectly clear what information they seek and that the request is a reasonable one. Opposition to the application is mounted based on delay. It is certainly unusual for particulars to be sought well after -- 4 of 6 -- 25112004 T19-20/NW1 M/T CMS134/2004 (Robin DCJ) 5 ORDER 1 10 20 30 40 50 60 pleadings have closed as they have here, but rule 161 of the UCPR says nothing to suggest that a time is reached when it is too late to seek particulars. Mr Marais' researches have unearthed a passage which is helpful to his position from Jacob and Goldrien, Principles of Pleading and Practice at page 171: "Making the application - when? The application should be made within a reasonable time after the necessity for it has arisen. It should not be delayed. Ordinarily the application is made on, and not before, the summons for directions or by notice under such summons. It is generally unnecessary to support such application by any affidavit. The significance of 'delay'. Although the court has power to order particulars of pleadings at any time, yet, the court may refuse to order such particulars which a party would otherwise be entitled to where there has been inexcusable delay in making the application, or the application is made at a late stage. This is because there might be a substantial risk of the trial being delayed or of other prejudice being occasioned to the opposite party. Thus, an application for particulars was refused, inter alia, because it was made just 12 days before the trial." The propositions in the text are supported by references to decided cases, all of them English. I am not persuaded that the present is a case for refusing to order the particulars. A trial is far from being imminent. Once a party has signed a request for trial date then that party certainly stands to be embarrassed in taking further interlocutory steps and requires the leave of the Court to do so. That is not the situation here. The philosophy of the UCPR is contrary to the third defendants' approach of offering to give the information sought at trial. Mr Marais has -- 5 of 6 -- 25112004 T19-20/NW1 M/T CMS134/2004 (Robin DCJ) 6 ORDER 1 10 20 30 40 50 60 suggested that at this stage it could be sought through interrogatories which, of course, can be administered only with the Court's leave. It seems to me that seeking the same information through particulars is a preferable and less complicated course. If the plaintiff is content with unsworn particulars rather than sworn answers to interrogatories so be it. In my opinion, the Court ought to order particulars. ... HIS HONOUR: And that the plaintiff's and the third defendants' costs of the application be their costs in the cause. Order as per draft. ----- -- 6 of 6 --