Solicitors for applicant/plaintiff: Douglas and Collins

CRAWFORD J The plaintiff has sued the defendant insurance company under a fire policy seeking indemnity following the burglary and destruction by fire of a hotel on 22 December 1991. The defendant denies that it is liable to so indemnify the plaintiff.

2. The substance of the defence is contained in the following passages in the amended defence:

"17 It was a condition of the policy referred to in

paragraph 16 that if the Plaintiff should make and deliver

to the Defendant a fraudulent claim or occasion loss, damage

or liability by his wilful act or with his connivance all

benefits normally payable in respect of such claim should be

forfeited.

18 The Plaintiff did make and deliver to the Defendant on

the 10th of March 1992 and 25th of March 1992 fraudulent

claims.

PARTICULARS OF CLAIM DATED 10th MARCH 1992

By Statutory Declaration dated 10th March 1992 the Plaintiff

claimed that loss or damage occurred to the insured premises

at 116 Flinders Street, Beauty Point in Tasmania as a result

of burglary/fire and that the loss or damage was not caused

or contributed to by the fault or negligence of any other

person.

PARTICULARS OF CLAIM DATED 25th MARCH 1992

The Plaintiff declared in a burglary claim form dated the

25th March 1992 that entry to the insured premises at 116

Flinders Street, Beauty Point in Tasmania had been effected

via a broken glass door and that monies had been stolen from

a safe.

19 The Defendant says that the claims referred to in

paragraph 18 were fraudulent in that the claims were untrue

and the Plaintiff knew them to be untrue.

PARTICULARS

The Statutory Declaration dated the 10th March 1992 was

fraudulent in that the Plaintiff:

(a) Stated that the loss or damage occurred as a result of

burglary#fire (sic) when no such burglary had occurred.

(b) Stated that the loss or damage was not caused or

contributed to by the fault or negligence of any other

person when the loss and damage had been caused or

contributed to by the fault or negligence of any other

person namely the Plaintiff and or his agent or agents, as

stated at paragraph 20.

The burglary claim form dated the 25th March 1992 was

fraudulent in that the Plaintiff:

(a) Stated that a burglary or theft occurred at the Hotel on

the 22nd December 1991 between the approximate hours of 9.15

pm and 10.45 pm when no such burglary or theft had occurred.

(b) Stated that a loss occurred at 116 Flinders Street,

Beauty Point, Tasmania 7270 when no such loss had occurred.

(c) Stated that entry to the premises was effected by a

broken glass door when no such entry had been effected.

(d) Stated that the premises were entered through a rear

door and monies were stolen from a safe when no such monies

were stolen.

20 The Defendant says that the Plaintiff's loss related to

loss and damage occasioned by the Plaintiff by his wilful

act or with his connivance.

PARTICULARS

The Plaintiff by his wilful act set fire to the hotel and

staged a burglary at the hotel in the sum of $11,560.00 or

connived with his agent or agents to set fire to the hotel

and staged a burglary at the hotel in the sum of $11,560.00

between the hours of 9.20 pm and 10.12 pm on or about the

22nd December 1991. The Defendant is presently unaware of

the identity of the Plaintiff's agent or agents.

21 The Defendant denies that it is liable to the Plaintiff

under the policy referred to in paragraph 16 or at all."

3. The plaintiff has applied for particulars of the allegation of connivance by seeking an order that the defendant provide particulars of the acts, facts, matters and circumstances on the basis of which it is alleged in par20 of the amended defence that the plaintiff connived with his agent or agents.

4. By par17 of the amended defence it is alleged that it was a condition of the policy of insurance "that if the Plaintiff should ... occasion loss, damage or liability by his wilful act or with his connivance all benefits normally payable in respect of such claim should be forfeited". It is an undisputed fact that there was a fire at the plaintiff's hotel and that it caused considerable damage. By par20 of the amended defence it is claimed that the plaintiff staged a burglary at the hotel and set fire to it. Alternatively, it is alleged that the plaintiff's loss was occasioned with his connivance and particulars of the allegation of connivance are that he "connived with his agent or agents to set fire to the hotel and staged (sic) a burglary at the hotel in the sum of $11,560.00 between the hours of 9.20 pm and 10.12 pm on or about the 22nd December 1991. The Defendant is presently unaware of the identity of the Plaintiff's agent or agents".

5. Neither counsel addressed the question whether the word "connivance" in the policy should be given an extended or restricted meaning. It may be that at the trial the meaning of the word as used in the policy will be an issue. At this stage of the case it should be assumed that all possible meanings may be canvassed at the trial and for that reason the need for sufficient particulars of the allegation against the plaintiff is plain in the interests of justice, so that the plaintiff will have an adequate understanding of what will be alleged at the trial.

6. The New Shorter Oxford English Dictionary provides the meaning of "connive" as to "shut one's eyes to ... pretend ignorance of, overlook", "turn a blind eye to (an action one ought to oppose, but which one secretly sympathizes with); be secretly accessory to", and "be in secret complicity, conspire". The meaning of "connivance" is given as "the action of conniving (at or in a person's misconduct); assistance in wrong doing by conscious failure to prevent or condemn; tacit permission". The dictionary gives two principal meanings. In Jowitt's Dictionary of English Law 2nd ed those two meanings can readily be seen, where at p240 "connivance" is explained as "where a person knows that a wrongful act is being done, and either assists or, being under a duty to interfere, does not interfere to prevent it" (my italics). To that might arguably be added the concept of an active conspiracy, an urging and an incitement. It is not clear from the amended defence whether the defendant intends to raise connivance in all of those senses or in only one of them, although I suspect that by using the expression "connived with his agent or agents" the sense of a conspiracy or of an urging or an incitement may be intended.

7. It is impossible therefore for the plaintiff to understand just what the defendant intends to raise at the trial in defence. Will it only be alleged that he knew beforehand that a burglary was going to be staged and a fire lit but he did nothing to prevent it? Will it be alleged that he urged or incited another to stage the burglary and light the fire? Will it be alleged as falling within the expression "connived with his agent or agents to set fire to the hotel" etc that the plaintiff took an active part in the staging of the events? In these regards I note that the defendant's counsel did not attempt to explain the precise basis upon which connivance is claimed.

8. Reference was made by counsel to Magna Alloys and Research Pty Ltd v Ten-Haaf 42/1980 in which the Chief Justice reviewed many authorities and stated a number of principles concerning the nature and purpose of particulars and the circumstances in which they will be ordered. From what the Chief Justice said I draw the following statements which have particular application to this case:

1 Particulars fulfil an important function in the conduct

of litigation. They define the issues to be tried and

enable the parties to know what evidence 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 hand they save expense by keeping

the conduct of the case within due bounds. Bailey v Federal

Commissioner of Taxation [1977] HCA 11; (1977) 136 CLR 214 at 219; Esso

Petroleum Co Ltd v Southport Corporation (1956) AC 218 at

241; Spedding v Fitzpatrick (1888) 38 Ch D 410 at 413.

2 It is a fundamental principle that a party should always

be fairly apprised of the nature of the case that party is

called upon to meet, shall be placed in possession of its

broad outlines and the constitutive facts which the other

party will rely on to establish or defend the case. A party

is entitled to receive sufficient information to ensure a

fair trial and to guard against what the law terms

"surprise" although there is no entitlement to be told the

mode by which the case is to be proved by the other party.

R v Associated Northern Collieries [1910] HCA 61; (1910) 11 CLR 738 at 740.

3 Every pleading shall contain, and contain only, a

statement as concise as the nature of the case will admit,

setting out the material facts on which the party pleading

relies for his claim or defence but not the evidence by

which they are to be proved. Rules of Court, O21 r3(1).

4 Every pleading shall be so framed as to give reasonably

explicit notice to the other party of all grounds of action

or all the defences which the party pleading it means to

rely on at the trial. Rules of Court, O21 r3(3).

5 A further and better statement of the nature of the claim

or defence, or further and better particulars of any matter

stated in any pleading, may in all cases be ordered, upon

such terms, as to costs and otherwise, as may be just.

Rules of Court, O21 r7(4).

6 When it is material to allege malice, fraudulent

intention, knowledge, or other condition of the mind of any

person, it shall be sufficient to allege the same as a fact

without setting out the circumstances from which the same is

to be inferred. Rules of Court, O21 r24(1).

7 It is a matter for the court in the exercise of its

discretion to determine what degree of particularity is

appropriate in each case.

9. I will apply those statements. The defendant intends to rely on a term of the insurance policy that prohibited a claim for a loss occasioned with the plaintiff's connivance. To plead merely that he connived with an unidentified agent or agents to cause the loss is plainly insufficient to amount to adequate notice of the material facts which will be alleged at the trial to prove connivance on the plaintiff's part. I emphasise that the defendant is not obliged to disclose the evidence it will call but only the material facts upon which it will rely. The plaintiff is entitled to know what at the trial it will be alleged he did (or did not do and in what circumstances) which amounted to connivance. To tell him that he connived with unknown persons is not enough. If the defendant is unable to particularise what the plaintiff did but instead will seek to have connivance inferred from certain facts then it should at least state the facts upon which it will rely for the drawing of that inference.

1 That within fourteen days the defendant deliver to the

plaintiff's solicitors further and better particulars of the

allegation of connivance in par20 of the amended defence

dated 11 May 1995 including particulars of the material

facts upon which the defendant relies as amounting to

connivance by the plaintiff and if the defendant claims that

it is unable to supply those particulars but claims instead

that such connivance should be inferred then particulars of

the material facts from which it claims such connivance

should be inferred.

2 There will be liberty reserved to the plaintiff to apply

for further and better particulars once the defendant has

delivered particulars consequent upon the previous order.