Meredith v Palmcam Pty Ltd & Anor [2000] QCA 113

Court of Appeal (Qld)|2000-04-07|Before: McPherson and Thomas JJA, Atkinson J, Judgment of the Court

[2] The pleading in para 17, 18 and 19 of the making of an offer to settle and its rejection was not something that was required or permitted by statute; nor was it proper to allege facts that were not only not material facts on which the plaintiff relied for relief but were the subject of attempts to settle the plaintiff's claim. The plaintiff has since acknowledged this by delivering an amended statement of claim in which those allegations are struck out.

[3] There remains the question of the way in which the plaintiff's damages are pleaded. Paragraphs 11 and 12 of the statement of claim are as follows:

"11. Full particulars of the plaintiff's special damages will be provided prior to trial of this action.

12. Full particulars of the plaintiff's damages claim will be provided in her Statement of Loss and Damage pursuant to Rules 155 and 547(3) of the Uniform Civil Procedure Rules."

[4] A Statement of Loss and Damage dated 28 February 2000 under UCPR 547 was later furnished by the plaintiff. However, before the primary judge the defendants submitted that the course adopted in the statement of claim did not conform with the requirements regulating pleadings under the Uniform Civil Procedure Rules. UCPR 150(1)(b) requires "every type of damage claim" to be specifically pleaded, "including, but not limited to special ... damages". UCPR 155 is as follows:

"155(1) If damages are claimed in a pleading, the pleading must state the nature and amount of the damages claimed.

(2) Without limiting Rule 150(1)(b), a party claiming general damages must include the following particulars in the party's pleading -

(a) the nature of the loss or damage suffered;

(b) the exact circumstances in which the loss or damage was suffered;

(c) the basis on which the amount claimed has been worked out or estimated.

(3) If practicable, the party must also plead each type of general damages and state the nature of the damages claimed for each type.

(4) In addition, a party claiming damages must specifically plead any matter relating to the assessment of damages that, if not pleaded, may take an opposing party by surprise."

[5] The judge rejected the defendants' submission to that effect. In ruling on it, his Honour said the arguments advanced in favour of it:

"completely ignore the fact that the Rules say 'where practicable' certain things must be pleaded. It is not a compulsory requirement, notwithstanding the word 'must' is used."

[6] With respect we do not agree with this conclusion. Rule 155(2) clearly states what particulars of general damages are to be included in the pleading of a party claiming general damages; and Rule 155(3) requires that each "type" of general damages be pleaded, as well as requiring a statement of "the nature" of the damages claimed for each type. In addition, UCPR 150(1) includes special damages as a type that must be "specifically" pleaded. Those requirements are not satisfied by the allegations in paras 11 and 12 of the statement of claim in this instance. Nor is there any reason to suppose it was not "practicable" to plead those matters in the statement of claim. Matters of that kind were incorporated in the plaintiff's Statement of Loss and Damage dated 28 February 2000, which was filed in the court on the following day. There is nothing to suggest that such of those matters as fell within the scope of Rules 150(1) and 155(2) and (3) could not have been included or pleaded in the statement of claim.

[7] The judge was dismissive if not derisory in some of his remarks about the defendants' submissions that the plaintiff had failed to satisfy those requirements of the Rules. We do not share his attitude. Expecting a plaintiff to comply with these quite specific provisions is in our respectful opinion not a matter of mere pedantry. It is true that there is, or is likely to be, an area of apparent duplication in having to comply with both UCPR 547 and the pleading rules to which we have referred. But the two sets of provisions serve different purposes. A party may be entitled to discovery (disclosure) and to interrogate in respect of matters pleaded, but not in respect of the details incorporated in a statement of loss and damage under UCPR 547. As well, the times at which these two sets of requirements are to be met are different.

[8] On the other hand, the defendants themselves were in breach of their obligations under the Uniform Rules. They applied to strike out the plaintiff's action without first complying with Rule 444 of the UCPR. His Honour considered that the plaintiff's reliance on that omission was "unanswerable", which, in the end, he regarded as conclusive against the defendants' application to strike out the statement of claim. Rule 444 requires that before making an interlocutory application of the types set out in Rule 443, an applicant must write to the respondent specifying the applicant's complaint, a brief statement of the relevant facts, the relief sought by the applicant, why the applicant should have the relief, the time (at least 3 business days after the date of the letter) within which the respondent must reply to the letter and that the letter is written under part 8 of chapter 11. Certain other procedural requirements follow. Although the court has the discretion to hear an application which does not comply with these requirements, good reason would have to be shown if it were to do so. This is because the requirements of Rule 444 serve the very useful purpose of alerting the respondent to the applicant's complaints giving the respondent the opportunity to respond or remedy the problem. This often obviates the need for the applicant to bring an application in court which serves the purpose of the UCPR set out in Rule 5(1) to "facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense". For this reason we have formed the opinion that this is not a matter in which it would be appropriate to grant leave to appeal under s 118(3) of the District Courts Act. The defendants' application for leave to appeal should be dismissed with costs.

[9] It remains to say that we were provided with a copy of the plaintiff's amended statement of claim which is dated 20 March 2000. It incorporates a new para 21 embodying a series of subparas lettered (a) to (h) containing particulars of types and amounts of damage evidently in response to the requirements of Rules 150(1)(b) and 155. They are, however, put forward in terms not of matters pleaded but rather in the form of "claims for relief" at the end of the statement of claim. This was said to have been done out of deference to the prescribed form of statement of claim (F16) in the forms to the Uniform Civil Procedure Rules, which suggests that this is the way in which it ought to be done. We consider, however, that adopting that precedent may leave it in doubt whether those "claims" are statements or particulars "pleaded" as required by Rules 150(1) and 155. To avoid the expense of delivering another statement of claim, we consider that they should be treated as pleadings of those matters in the present instance. In future, however, we regard it as preferable that such statements of particulars appear as allegations in the body of the statement of claim and not only in what used to be called the prayer for relief. It would no doubt be a sufficient compliance with the terms of Form 16 if the claims made in it simply refer back to the amounts or matters pleaded in relevant paragraphs of the statement of claim without repeating them in full in the prayer for relief at the end.

Accident Insurance Act 1994

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