New South Wales Court of Appeal CITATION: Allianz Australia Insurance Ltd v Newcastle Formwork Constructions Pty Ltd [2007] NSWCA 144 HEARING DATE(S): 14 June 2007 JUDGMENT DATE: 25 June 2007 JUDGMENT OF: Mason P at 1; Giles JA at 2; Santow JA at 32 DECISION: Summons for leave to appeal dismissed. Claimant to pay opponent's costs. CATCHWORDS: Particulars - claim for indemnity under s151Z(1)(d) Workers Compensation Act 1987 - plaintiff must establish damages injured worker would recover in action against wrongdoer - what particulars of damages to be provided - whether judge erred in declining to order provision - was obligation to provide particulars - but request was excessive - no appealable error. LEGISLATION CITED: Workers CompensationAct 1987, s 151Z(1)(d) Grant v Royal Rehabilitation Centre Sydney (1999) 47 NSWLR 263; Higgins v Weekes (1888) 5 TLR 238; CASES CITED: Jawa Group Pty Ltd v Tatana (Garling DCJ, 12 April 2005, unreported); Sims v Wran (1984) 1 NSWLR 317; Westpac Banking Corporation v Tomassian (1992) 32 NSWLR 207. PARTIES: Allianz Australia Insurance Ltd - Claimant Newcastle Formwork Constructions Pty Ltd - Opponent FILE NUMBER(S): CA 40612/06 COUNSEL: S Harben SC & A Capelin - Claimant L King SC & M J Jenkins - Opponent SOLICITORS: T L Lawyers, Newcastle - Claimant Turkslegal - Opponent LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC 3836/05 LOWER COURT JUDICIAL OFFICER: Hughes DCJ LOWER COURT DATE OF DECISION: 8 September 2006 LOWER COURT MEDIUM NEUTRAL CITATION: (Hughes DCJ, 8 September 2006, unreported) IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40612/06 DC 3836/05 MASON P GILES JA SANTOW JA Monday 25 June 2007 ALLIANZ AUSTRALIA INSURANCE LTD v NEWCASTLE FORMWORK CONSTRUCTIONS PTY LTD Judgment 1 MASON P: I agree with Giles JA. 2 GILES JA: This was an application for leave to appeal from the dismissal in the District Court of a notice of motion seeking an order that the opponent answer the claimant's request for particulars. The request was for particulars in a claim for indemnity pursuant to s 151Z(1)(d) of the Workers Compensation Act 1987. The application for leave was heard as if an appeal, so that the appeal could be decided without further submissions if leave were granted. 3 The occasion for the proceedings in the District Court was unremarkable. A worker employed by the opponent was injured in a motor vehicle accident, allegedly as a result of negligence by the other driver. The claimant was the CTP insurer of the other driver. The worker was on his way to work, and the opponent paid workers compensation entitlements to him. In proceedings brought against the other driver and the claimant, the opponent sought pursuant to s 151Z(1)(d) to recover from the claimant the payments made to the worker. 4 The Court raised with the parties the claimant's status as a defendant to the opponent's claim for indemnity. The other driver could not be found and had not been served. The claimant had been joined as a defendant, after a contested hearing, by an order made by Judicial Registrar McDonald. No appeal had been brought from the order, and neither party was concerned in this Court to question whether an order for indemnity could be made against the claimant. 5 The effect of s 151Z(1)(d) is that the indemnity is limited to the amount of the damages the other driver was liable to pay to the worker. In the opponent's proceedings it is necessary first to determine the amount of the damages which would have been recoverable had the worker sued the wrongdoer: Grant v Royal Rehabilitation Centre Sydney (1999) 47 NSWLR 263. The opponent as part of its case has to establish not only that the other driver was liable to the worker, but also the damages which the worker would have obtained in proceedings against the other driver. From this came contention over particulars. 6 By its statement of claim filed on 8 September 2005 the opponent alleged that the worker suffered injuries and disabilities and, in general terms only, that the other driver was liable to pay damages to the worker. By a letter dated 10 November 2005, written before the claimant was joined as a defendant but presumably because it had taken up the interests of the other driver notwithstanding that he could not be found and had not been served, the claimant's solicitors asked for particulars (including documents) said to be "necessary so as to enable an assessment of the worker's entitlement to damages". The letter drew attention to a decision of Garling DCJ in Jawa Group Pty Ltd v Tatana, 12 April 2005, said to have determined that in s 151Z(1)(d) claims particulars were to be provided analogous to those which would be required under Pt 9 r 27 of the District Court Rules. 7 Part 9 r 27 provided in some detail for a statement providing particulars and documents in proceedings claiming damages for personal injury. As at 10 November 2005 it had been supplanted by r 15.12 of the Uniform Civil Procedure Rules later mentioned; the substance was the same. 8 The opponent's solicitors did not answer the letter of 10 November 2005. Reminder letters dated 13 December 2005, 11 January 2006, 22 March 2006 and 22 May 2006 were also not answered. Eventually there came a reply, by a letter dated 23 June 2006, relevantly reading - "The Plaintiff is not aware of any statute or regulation requiring it to answer a request for particulars in a claim for indemnity under Section 151Z of the Workers Compensation Act 1987 (NSW). In those circumstances, answers to your request for particulars will not be provided." 9 The letter of 23 June 2006 did not advert to Jawa Group Pty Ltd v Tatana. The solicitors for the claimant responded by a letter dated 27 June 2006, again drawing attention to Jawa Group Pty Ltd v Tatana and suggesting that ss 57 and 61 of the Civil Procedure Act 2005 had the same effect as Pt 9 rr 19 and 26 of the District Court Rules. The letter included - "We request that you obtain and provide the best particulars currently available within your knowledge or available to you after simply inquiring. We consider that we should be provided with advance notice of the particulars, as we expect they are precisely what you intend to elicit from the hearing of the matter, so as to attempt to support your allegations as to the extent of your client's indemnity." 10 The raising of ss 57 and 61 was not explained in the letter. They stated the objects of case management (s 57) and gave power to give directions "for the speedy determination of the real issues between the parties to the proceedings" (s 61). 11 A reply from the solicitors for the opponent came by a letter dated 31 July 2006. It relevantly read - "Section 57 and 61 of the Civil Procedure Act refer to the Court's powers to make orders about case management and practice and procedure generally. The decision of Judge Garling in the matter of Jawa Group Pty Ltd v Tatana saw an order that the plaintiff provide answers to a request for particulars, on that particular occasion, on the principles of basic fairness; not because it is required by any statute or regulation or Court rule. I confirm the plaintiff's position as outlined in my facsimile of 23 June 2006. The plaintiff is not aware of any statute, regulation, Court rule or otherwise requiring it to answer a request for particulars of a potential witness of a claim for indemnity under section 151Z of the Workers Compensation Act 1987 (NSW)." 12 On 23 August 2006 the claimant filed its notice of motion, claiming an order that the opponent "provide full and proper answers to" its request of 10 November 2005. 13 The notice of motion was heard by Hughes DCJ on 8 September 2006. At the judge's instigation, in the course of the hearing counsel conferred and some answers were provided. They were described to the judge as answers to four questions "with the exception of one [being] no longer than two words to each, some of those words being nil and not applicable". Unsurprisingly from this description, the claimant was not satisfied. The hearing continued. 14 The judge gave ex tempore reasons. Early in the reasons he described the particulars requested as "wide ranging in they contain seeking particulars that in my opinion are in the province not of the employer Newcastle Formwork Constructions Pty Ltd but in the province of the plaintiff". This is as recorded in the transcript of the reasons. By "plaintiff" his Honour no doubt meant the worker. 15 The judge's ruling is to be found in the passages of his reasons, again as recorded in the transcript - "However, the particulars sought by the mover of the notice of motion, Newcastle Formwork Constructions Pty Limited, as I said cover a wide ranging matters that are peculiar and indeed could only be in the knowledge in my opinion of the injured worker. However, as Mr Capelin has pointed out until I sent them outside today no answers were given, we cannot answer this because it is not within our knowledge and so on. One would have thought just as a matter of professional courtesy one would have sent back a letter giving the information that one had as to the circumstances of the worker but things like marital status. I mean the respondent to the notice of motion may have no idea what the marital status was, it is a matter that should be asked of the worker and not of the insurer. In those circumstances I am dissatisfied with the way the parties have approached the matter. I am not satisfied that such a wide-ranging request for particulars is one that should be allowed and I note that Mr Capelin has told me that during the interval when the parties went outside some answers were provided, although perhaps not to his satisfaction but I am not satisfied that I should order the respondent in the notice of motion to answer the particulars sought in the notice of motion. Therefore I dismiss the notice of motion. … " 16 In submissions in this Court the claimant said that the judge dismissed the notice of motion on the basis that by wide-ranging he meant that they involved matters within the knowledge of the worker as opposed to the opponent, and that he erred in that there was no evidence before him that the opponent was not privy to the worker's knowledge or unable to ascertain the matters relevant to answering the request for particulars by speaking to the worker. 17 The reasons are, with respect, not particularly clear; but while the judge referred to the particulars requested covering matters which could only be within the knowledge of the worker, I do not think that that was the basis on which he dismissed the notice of motion. Some of the particulars requested were plainly within the opponent's knowledge, for example the nature of the worker's employment and his duties performed at the time of the accident. Others may or may not have been within the opponent's knowledge, but the vice which in my view brought the judge to his decision was that the particulars requested were excessive. That they included matters in the judge's view likely to have been only within the worker's knowledge was part of the excess. 18 The purpose of particulars is to assist in defining the issues at the trial, whereby the opposite party knows the case it has to meet and will not be taken by surprise, so that the evidence to be led can be appropriately confined and costs can be limited by avoiding the expense of preparing to meet issues which will not arise. Giving particulars of the case to be made out has been distinguished from disclosing the evidence by which the case is to be proved, but the distinction is not a clear one and the touchstone must be what is reasonably necessary to achieve the purposes last-mentioned. Authority is hardly necessary, but there can conveniently be set out from the judgment of Hunt J in Sims v Wran (1984) 1 NSWLR 317 at 321-2 - "The fundamental principle in relation to particulars in defamation, as in any other case, is that a party must be made aware of the nature of the case he is called upon to meet: Saunders v Jones (1877) LR 7 Ch D 435 at 451; R v Associated Northern Collieries (1910) 11 CLR 738 at 740; Dare v Pulham (1982) 148 CLR 658 at 664. The object of particulars is to save expense in preparing to meet a case which may never be put: McSpedden v Harnett (1942) 42 SR (NSW) 116 at 119; 59 WN 98; Turner v Dalgety & Co Ltd (1952) 69 WN (NSW) 228 at 229; and to make the party's case plain so that each side may know what are the issues of fact to be investigated at the hearing: Kelly v Kelly (1950) 50 SR (NSW) 261 at 265; 67 WN 193 at 196; Bailey v Federal Commissioner of Taxation (1977) 136 CLR 214 at 219. See, generally, Phillopini v Leithead [1959] SR (NSW) 352 at 358, 359; 76 WN 150 at 152; Commercial Bank of Australia Ltd v Thomson (1964) 81 WN (Pt 1) (N.S.W.) 553 at 557, 558; Ellis v Grant (1970) 91 WN (NSW) 920 at 924, 925. It is not a question of whether one party has adequate knowledge of the actual facts; it is a question of whether he has adequate knowledge of what the other party alleges are the facts, for that is the case which he must meet: Turner v Dalgety & Co Ltd (at 229); Phillopini v Leithead (at 359; 152); Emmerton v University of Sydney [1970] 2 NSWR 633 at 635; Bailey v Federal Commission of Taxation (at 219, 220, 221). There is often a fine line between giving particulars of the case which a party proposes to make and disclosing the evidence by which that case is to be proved. It all depends upon what is necessary to guard the other party against surprise. If the other party cannot otherwise be so guarded, it may sometimes be necessary for a party to disclose his evidence, or at least a broad outline of it. The starting point is what is necessary to guard the other party against surprise; the starting point is not what can be said without disclosing the evidence to be led." 19 The request for particulars indeed was excessive, and went beyond a proper request for particulars. It included asking for other names by which the worker was known, for specific reference to assessment of permanent impairment pursuant to guidelines (see Motor Accidents Compensation Act 1999, s 131), for names and addresses of all treating hospitals and treating doctors, for details of all health absences prior to the accident including reasons given and all medical certificates, and for the names and addresses of all persons claimed to have provided domestic assistance. It asked for a host of documents unrelated to the worker's injury in the relevant accident - " 6. DOCUMENTS 6.1 Please provide copies of all claim forms, reports of injury, factual investigation report and statements made by any witnesses, including by the worker, in relation to all accidents or injuries sustained by the worker whilst in the employ of the plaintiff and/or any claims lodged with your workers compensation insurer client . 6.2 Please provide all settlement or award documents relating to all claims made by the worker , including but not limited to, documents entitled 'Heads of Agreement' or 'Findings And Admissions', as well as any related commutation documentation. 6.3 Please provide an updated list of payments (along with identified dates of payment), as well as administrative and investigation expenses, in relation to all claims so made by the worker ." (emphasis added) 20 The request for particulars went far beyond what was necessary for the claimant to know the case it had to meet. 21 Part 15 of the UCP Rules deals with particulars. Rule 15.12 makes specific provision for particulars in a claim for damages "in respect of personal injuries arising from any event", other than proceedings under the Compensation to Relatives Act 1897. It is the successor to Pt 9 r 27 of the District Court Rules, and would have applied if proceedings had been brought by the worker against the other driver. By r 15.14, the statement and documents required by r 15.12 "must be as final and complete as to the plaintiff's case as they can, with the exercise of reasonable diligence, be made", and must be supplemented to make them accurate and complete if the plaintiff subsequently becomes aware that they are no longer accurate or complete. This specific provision goes further, in the detail and documents required, than the particulars necessary for the defendant to know the case it has to meet. 22 It was common ground in this Court that r 15.12 does not apply to a claim for indemnity under s 151Z(1)(d). This Court held in Westpac Banking Corporation v Tomassian (1992) 32 NSWLR 207 that a claim for indemnity under s 151Z(1)(d) of the Workers Compensation Act is not a claim for damages in respect of the death of or injury to a person within s 40 of the Motor Accidents Act 1988. The parties were agreed that the reasoning in this case meant that a claim for indemnity under s 151Z(1)(d) was not a claim for damages in respect of personal injuries within r 15.12 23 In Jawa Group Pty Ltd v Tatana Garling DCJ held that in a claim for indemnity under s 151Z the plaintiff must "advise the defendant, in a manner similar to the particulars pursuant to Pt 9 of the District Court Rules, as to what they anticipate the worker's case will be to allow the defendant to prepare their defence, in relation to the case the worker would have brought as a plaintiff". This did not necessarily mean the full rigour of Pt 9 r 27, now r 15.12, but even if that were the model the claimant's request for particulars significantly exceeded what it required. 24 Apart from the particular provision in r 15.12, the UCP Rules provide - (a) by r 15.1(1), that a pleading must give "such particulars of any claim … as are necessary to enable the opposite party to identify the case that the pleading requires him or her to meet"; (b) by r 15.9, that the particulars to be given by a pleading must be set out in the pleading or, if that is inconvenient, must be set out in a separate document referred to in the pleading and filed with the pleading; and (c) by r 15.10, that the court may order a party to file particulars of any claim stated in the party's pleading (15.10(1)(a)) and, if the party claims damages, particulars relating to general or other damages (r 15.10(1)(c)). 25 Contrary to the letters of 23 June and 31 July 2006 from the opponent's solicitors, the opponent was obliged to provide particulars. The blanket rejection of any obligation was incorrect. At the least, the opponent had to provide particulars whereby the claimant would know the case it had to meet in relation to, amongst other things, the damages the worker would have obtained in proceedings against the other driver. 26 The claimant otherwise submitted in this Court that the judge erred in that he "failed to analyse in any detail the individual questions asked in the request for particulars". It is correct that he did not, but on the basis the matter was put before him he was not required to do so. Written submissions provided to the judge and the transcript of the hearing were before this Court. Counsel for the claimant did not invite the judge, or assist the judge by submissions, to rule that some of the requests in the request for particulars should be answered but others need not be answered. He described them, incorrectly, as "the usual particulars that you would expect in an ordinary personal injury action", and his stance was that the claimant should have them all: although a qualification could perhaps be seen that the opponent could reply that it did not know and had been unable to find out from the worker. Counsel for the opponent accepted a limited obligation to provide particulars, hence the answers to four questions, but his stance in an analysis part of his written submissions was that the vast majority of the requests were not proper requests for particulars. Counsel for the claimant did not respond to the written submissions in this respect. 27 On the basis the matter was put before the judge, appealable error has not been shown in the judge's view that the opponent should not be ordered to answer the request for particulars. Leave to appeal is not warranted. 28 On the hearing of the application for leave to appeal it was suggested that in claims for indemnity pursuant to s 151Z(1)(d) in the District Court there was commonly tactical conflict between the real protagonists, WorkCover and the insurers behind it on the one hand and CTP and other insurers on the other hand, over the particularisation which should be provided. 29 The general principles in relation to particulars, as described in the passage from Sims v Wran earlier set out, are well established. So also is it established that a party is obliged only to provide the best particulars it can, so that a party in a representative capacity (for example) may only be able to give general particulars (see Higgins v Weekes (1888) 5 TLR 238). The application of these principles in a claim for indemnity under s 151Z(1)(d) will depend on the circumstances, including whether the worker is co-operative towards the plaintiff, and it is not for this Court to prescribe in the abstract. It should not be forgotten that parties have a duty to assist the court to further the just, quick and cheap resolution of the real issues in proceedings (Civil Procedure Act, 2005, s 56), It is to be hoped that the present case's unfortunate combination of an excessive request for particulars and an intransigent response is an aberration. 30 The objectives of r 15.12 would seem to apply to establishing the damages which would have been recoverable had the worker sued the wrongdoer. Consideration should be given to rules which prescribe particulars and documents in relation to damages in claims for indemnity under s 151Z(1)(d), in similar manner to r 15.12 but with such modification as is thought appropriate because the plaintiff is not the worker and may require the worker's co-operation. WorkCover and interested insurers can no doubt be invited to participate in formulating rules. 31 I propose the orders that the summons for leave to appeal be dismissed and the claimant pay the opponent's costs. 32 SANTOW JA: I agree with Giles JA. ********** 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. 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