District Court New South Wales Medium Neutral Citation: FIIG Securities Limited v Pioneer Credit Limited (No. 2) [2023] NSWDC 649 Hearing dates: 28-29 June 2023 Date of orders: 29 June 2023 Decision date: 29 June 2023 Jurisdiction: Civil Before: Neilson DCJ Decision: See par [21]. Catchwords: Practice and Procedure – Requests for Particulars – Inability of a party to obtain a witness statement / affidavit – UCPR 31.4(8) – Late application to file a cross-claim. Legislation Cited: Uniform Civil Procedure Rules 2005. Cases Cited: Australian Securities and Investment Commission v Vines [2002] NSWSC 1223 at [8], [17]. Texts Cited: Ritchie's Uniform Civil Procedure NSW. Category: Procedural rulings Parties: Plaintiff – FIIG Securuties Limited Defendant – Pioneer Credit Limited Representation: Counsel: Plaintiff – Wherrett, J. Defendant – Rogan, T. Solicitors: Plaintiff – Gadens. Defendant – Bennett Law. File Number(s): 2022/00040998 Publication restriction: Nil. Judgment 1. HIS HONOUR: When this matter came before me yesterday, there was a notice of motion brought by the plaintiff which I dealt with yesterday. I then embarked upon the hearing of the defendant's notice of motion which was filed on 30 May 2023. 2. There are a number of aspects to that notice of motion. Because of limited time available yesterday, I only heard argument about the third prayer for relief, a prayer seeking extension of time to bring a cross‑claim. I have now heard what the parties wish to say about the first and second prayers which, essentially, seek further and better particulars, not only of an Amended Statement of Claim but also of a outline of evidence that is anticipated by the plaintiff will be given by Mr Erryn Lloyd‑Jones. The fourth and fifth prayers for relief in the notice of motion are prayers for costs, but that is an unnecessary pleading. 3. I will deal with the matters seriatim. The first prayer for relief numbered 1(a) is that: "The plaintiff give further and better particulars of paragraphs 4, 9, 10, 11 and 14 of the amended statement of claim filed on 19 July 2022." 1. I have read the request for reply and the answer provided was this: "As to paragraphs 1 to 5 (inclusive) of your client's request under the heading 'Request for Further and Better Particulars', our client's position, is that: (a) the requests made are not proper requests for particulars; (b) the particulars sought are a matter for evidence; and (c) the particulars sought have already been pleaded as particulars in the amended statement of claim or included in our client's response to your client's notice to produce dated 14 March 2022." 1. In my view, the requests for particulars are proper requests for particulars, and although they might point at what the evidence might be, they are not a request for evidence. In those circumstances, I order the plaintiff to provide to the defendant within 28 days particulars requested of paragraphs 4, 9, 10, 11 and 14 of the Statement of Claim. 2. The second prayer for relief, that numbered 1(b), is that: "The defendant give details of paragraphs 3, 4, 5(f), 5(g), 5(i), 6, 7 and 9 of the outline of anticipated evidence of Erryn Lloyd‑Jones provided to the defendant on 30 March 2023, insofar as possible plaintiff is able to do so." 1. This application belies much of what has been done. On 8 February 2023, certain evidentiary orders were made by the Judicial Registrar. The Judicial Registrar ordered the plaintiff to serve lay evidence‑in‑chief by 5pm on 3 March 2023. The defendant was to serve lay evidence‑in‑chief by 5pm on 17 March 2023. The plaintiff was to serve any lay evidence in reply by 5pm on 31 March, and the plaintiff was to serve any expert evidence‑in‑chief by 6 April 2023. The defendant was to serve any expert evidence by 26 April 2023. 2. The Judicial Registrar did not state whether the evidence was to be given by witness statement or by affidavit. The normal practice in this Court is for such evidence to be given by affidavit but the Judicial Registrar did not make a specific ruling to that effect. 3. I have been told from the Bar table that Mr Erryn Lloyd‑Jones is not available to the defendant to provide either a witness statement or an affidavit, despite attempts by the lawyers to do so. Why that may be the case is unclear, and the reason why ought really be disclosed to the Court. If he be unavailable to provide a witness statement or an affidavit, then the Court must be approached to make an appropriate order exempting him from giving such evidence in advance. If that be the case, it may be impossible for the defendant to give any further particulars of the anticipated evidence that Mr Lloyd‑Jones might give. 4. The Uniform Civil Procedure Rules 2005 r31.4 (8) provides this: "An application by a party for an order that a party not be required to comply with a direction under this rule in respect of any proposed witness or witnesses (whether or not such a direction has been given) may be made without serving notice of motion." 1. UCPR 31.4 deals with the ability of the Court to direct a party to furnish a witness statement. The commentary in Ritchie's Uniform Civil Procedure NSW [31.4.15] is this: "Where a party knows that a witness will not provide a witness statement or execute an affidavit, the convenient practice is for the party proposing to call the witness to provide an outline of the evidence it expects that the witness will give. The notice should be as full as practicability, and available information, permit. Even where the outline is reasonably full and has been prepared in good faith, there is still potential for the witness to deviate from the outline at the hearing. There are practical reasons why this may be anticipated. For example, the very process of leading evidence orally is likely to result in the witness giving evidence using different language, to different effect, and in a different order, than a previous outline. Where departure from the outline gives rise to a real risk of prejudice to another party an application may be made either to exclude the evidence or to seek an adjournment to meet it. In such a case the court's task is to weigh up the risk of prejudice to one party against the disadvantage to the other party if the new evidence is excluded. Provided the outline provided was a full and genuine attempt to notify the other parties of the proposed evidence the risk of surprise (at least in the absence of demonstrable prejudice) is not a ground for preventing or limiting the witness's evidence": Australian Securities and Investments Commission v Vines [2002] NSWSC 1223 at [8], [17]" 1. One can understand that the plaintiff anticipating not being able to provide a statement from Mr Lloyd‑Jones or an affidavit from him should have prepared an outline of the evidence which it anticipates Mr Erryn Lloyd‑Jones will give, the outline having been served upon the defendant by the plaintiff's solicitors under cover of an email of 30 March 2023, the outline commencing at page 414 of the current court book. 2. Without there being an order having been made under rule 31.4(8), reliance upon the outline of the anticipated evidence of Mr Lloyd‑Jones is premature. The plaintiff must obtain an order under rule 31.4(8) before the plaintiff can rely upon the outline of anticipated evidence of the proposed witness. Only when such an order has been made and a proper outline of anticipated evidence served, can the Court deal with the relief currently sought by the defendant in paragraph 1(b) of the notice of motion. 3. The next prayer for relief is otiose. That prayer for relief is this: "The plaintiff shall not be permitted to adduce evidence at trial of matters other than the matters the plaintiff has pleaded in its amended statement of claim or disclosed by the particulars or details required by paragraph 1 of this order." 1. The whole purpose of pleadings and particulars is to limit the evidence. A party is not permitted to adduce evidence outside the pleadings and the particulars relating to the pleadings; therefore, the prayer for relief is completely unnecessary. 2. The third prayer for relief is that: "The defendant have leave to file a cross‑claim in terms of or substantially similar to the draft cross‑claim provided by the defendant to the plaintiff on 18 May 2023 within three days of the order being made." 1. The proceedings were commenced by a Statement of Claim filed on 11 February 2022. A defence was filed on 28 March 2022. If the defendant wished to serve a cross‑claim, it ought to have served its cross‑claim with the defence on 28 March 2022. The Amended Statement of Claim was filed on 19 July 2022. A defence to the Amended Statement of Claim headed "Amended Defence" was filed on 17 August 2022. The defendant was at liberty to file with that document a cross‑claim; however, it did not. 2. As ought be clear from the prayer for relief, a notice of the cross‑claim was given to the plaintiff on 18 May 2023. The defendant says it is prejudiced, and there are certain ways in which prejudice can arise; however, the causes of action pleaded in the proposed cross‑claim are not statute barred. If the Court refused to permit the defendant to file and serve the cross‑claim, then the defendant would be entitled to commence a fresh set of proceedings, naming itself as the plaintiff and the current plaintiff as the defendant, seeking exactly the same relief that it proposes to bring in the cross‑claim. This would be a waste of the Court's resources, and costs, and time. 3. Utility points to the need for the cross‑claim to be filed and served in these proceedings so that all the issues arising between the parties can be heard and determined at the same time. The defendant points out that it might be prejudiced, for example, because Mr Erryn Lloyd‑Jones is no longer employed by the defendant, having left its service in December of 2022. If he had not left its service, counsel for the plaintiff believes that the plaintiff would have been a in a better position to obtain instructions about the proposed cross‑claim. 4. However, the same problem that currently arises would arise if a fresh set of proceedings were conducted. The defendant, however, ought realise that it should have behaved more promptly in giving notice of the cross‑claim and bringing it, and for example have filed a cross‑claim with its defence of 28 March 2022 or with its amended defence of 17 August 2022. It might raise new evidentiary matters, and the plaintiff ought be protected in costs if new evidentiary matters arise about which it is not in a position to obtain swift and prompt instructions. 5. For those reasons, I grant leave to the defendant to file and serve a cross‑claim in substantially similar form to the draft cross‑claim provided to the defendant by the plaintiff on 18 May 2023 within five working days of today. 6. I order the plaintiff to pay the defendant's costs of obtaining relief under prayer 1(a). 7. I reserve the question of costs of the application to bring the cross‑claim to the trial judge in the event that the plaintiff finds any difficulty in obtaining instructions or otherwise in meeting the bringing of the cross‑claim because of the defendant's delay in bringing the cross‑claim. 8. HIS HONOUR: Any other orders sought? No? 9. The proceedings to be listed before the Judicial Registrar on Thursday, 3 August 2023 for case management directions. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 August 2024