More recently, in Kurnell Transport , McColl JA at [40] treated Tickle Industries as authority for the proposition noted above.
15 This line of authority, albeit in discussion not central to the issues in dispute in the various cases, is squarely against the proposition that the defendant tortfeasor bears the onus of proving the damages payable. Nor do semantic variations between different provisions warrant any different view being taken with respect to the purpose and effect of s 151Z(1)(d). Accordingly, the onus of proving loss is upon the plaintiff, which must therefore particularise its claim as best it can.
Procedural issues
16 Before considering the appropriateness of the order made by the trial judge, it is necessary to note so much of the procedural skirmishing between the parties as gave rise to the order made on 12 June 2008 in the District Court. Prior to April 2008, the defendant had been requesting particulars over a period of months, which the State had either been resisting or slow in providing. Apparently by way of belated response to an order of the Judicial Registrar, a statement of particulars was filed in the District Court on 11 April 2008. It is not necessary to set out the whole of that document, but it provides an expanded form of a schedule of damages and, in relation to "particulars of loss of income" stated:
"The Worker was completely incapacitated for work as a result of the injuries and disabilities occasioned by the Defendants since 26 February 1996 to date."
17 Details were then provided of his weekly income, gross and net, at the time of the accident and a calculation of past loss of income was included. Under the heading "Future Loss of Income" the statement as to complete incapacity was reiterated and a claim was made for damages for future economic loss to the age of retirement. At about the same time, the State served on the defendant a schedule of compensation payments from 18 February 1996 to 9 April 2008. Perhaps inconsistently with a claim of complete incapacity, that schedule revealed that payments had been made from approximately the date of the accident (18 February 1996) until 30 May 1996, but that no further payment had been made until 23 October 2005. In addition, for a period in late 2005-early 2006, payments had been made for "partial incapacity".
18 This material was no doubt potentially inconsistent with the particular claiming complete incapacitation and would have given rise to a question as to why the employer made no compensation payments for almost a decade, and then reinstated them. According to the evidence, that question was neither expressly asked nor answered. It was at this point that the process adopted below became confused.
19 On the same day as the particulars were served, the defendant wrote to the State in the following terms, after expressly referring to the statement of particulars:
"In the claim for past economic loss it is alleged the worker was completely incapacitated for work as a result of the injuries and disabilities since the accident. That is clearly not the case.
It appears the worker continued employment with the plaintiff until 2005, in addition to employment with the fire brigade and Army Reserve within this period.
Would you please provide proper particulars of past economic loss and details of all periods that the worker was absent from work."
20 There appears to have been no response to that letter before the defendant, on 13 May 2008, filed a notice of motion seeking, amongst other orders, an order in the following terms:
"That the plaintiff provide further and better particulars as requested by the defendant in letter dated 11 April 2008."
21 The affidavit in support of the motion recounted the history of the requests for particulars and noted that on "1 April 2008 the court ordered for [sic] the plaintiff to serve 15.12 particulars within 7 days": affidavit of A M Duffy sworn 13 May 2008. That order was not, in terms, before this Court and the precise language used is not known. The affidavit continued at paragraph 49:
"In the statement of particulars served, the plaintiff alleges the worker was completely incapacitated for work as a result of the injuries and disabilities since the accident and claims the worker would have been entitled to economic loss accordingly. That is clearly not the case. It appears the worker continued employment with the plaintiff until 2005, in addition to employment with the fire brigade and Army Reserve within this period. It is not possible for the defendants to ascertain the worker's various periods off work in relation to the 1996 accident without proper and accurate particulars."
22 The position adopted by the defendant was twofold: first, he claimed that the facts known to him were inconsistent with the particulars alleged and, secondly, he was otherwise unaware of relevant facts. These responses to particulars are somewhat curious; neither taking issue with the correctness of an allegation, nor complaint about the difficulty of contradicting it, is usually a basis for asserting that the particulars are inadequate. What is required is particularity as to the claim made by the plaintiff: whether or not the plaintiff can establish its case is quite another question, as is the question of whether the defendant can resist the case.
23 As was acknowledged during the course of the hearing before Johnstone DCJ, the letter of 11 April itself failed to identify what was required with respect to additional particulars. The affidavit, in turn, only expressly required "proper and accurate particulars" with respect to the worker's "various periods off work in relation to" the 1996 accident.
24 During the course of the hearing on 12 June 2008, as the transcript reveals, the course taken in argument took a rather different turn. When confronted by his Honour's proposition that "this letter [of 11 April] is so inadequate that I'd rather you went away and redraft it with a proper request for particulars", counsel for the defendant responded that the Court could order the plaintiff to provide "the particulars outlined in rule 15.12": Tcpt (NSW DC), 12 June 2008, p 46. It then became common ground that the rule did not apply to the proceedings and that the plaintiff could not be directed to provide particulars which were beyond its knowledge. Counsel for the State then noted that his instructing solicitor had sworn an affidavit that the plaintiff had already provided "the best particulars available to it": affidavit of M J Lamproglou, 27 May 2008, par 16. His Honour noted that he had not been cross-examined and could have been: Tcpt, p 50. There then followed a discussion as to some elements of r 15.12 which might be expected to give rise to particulars and counsel for the defendant proceeded to indicate which paragraphs had not resulted in the supply of documents or particulars.
Judgment in the District Court
25 The judgment of 12 June 2008 dealt with a number of matters, the request for particulars being addressed at [15]-[19]. Much of the discussion was focused on the proposition made by the plaintiff that it would not be "open" to the Court to make an order "analogous to r 15.12": at [16]. This was apparently treated as a question of power, although the application of a rule "by analogy", in proceedings to which it does not apply, may distract attention from the real question which is to identify the nature of the further and better particulars sought and whether it has been demonstrated that the present particulars, when viewed according to the relevant legal requirements, were inadequate.
26 After formulating an order in terms which were ultimately reflected in the order made, his Honour continued at [19]:
"In that regard I am satisfied that there is other material that would be within the knowledge of the plaintiff that falls within r 15.12, even with the limitations I have indicated, notwithstanding the assertion in the affidavit of Mr Lamproglou sworn 27 May 2008 to the effect that the plaintiff has provided the best particulars available to it: see paragraph 16 of that affidavit. I simply do not accept that that could be the case."
27 One problem with the factual conclusion is, as his Honour was aware, that Mr Lamproglou had not been cross-examined. A second problem was that various elements of r 15.12 and the particular inadequacies which might have elicited a specific response on behalf of the State had not been identified prior to the hearing.
28 Furthermore, only a handful of provisions in r 15.12 were actually discussed during the course of the hearing as possible matters to which further particulars might have been provided or documents disclosed. Nor was the order limited to these matters. Rather, the concession to the acknowledgement that r 15.12 was inapplicable in the proceedings was to qualify it by reference to the "knowledge as a plaintiff in a representative capacity": judgment at [19].
29 The reference to representative capacity was inapt, though probably not critical in the context of the order. The phrase came from the judgment of Giles JA in Allianz Australia where, after noting the general principles in relation to particulars as being well-established, continued at [29]:
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)."
30 As had been noted in written submissions filed in the District Court, the reference to representative capacity in that context arose from the fact that the plaintiff in Higgins was the administrator of an estate. There was no suggestion that the plaintiff in an indemnity claim was acting in a representative capacity, whether of the worker or of any other person. Somewhat awkwardly, the form of the order stating that the plaintiff was not required to particularise matters "solely within the knowledge of the worker" was presumably intended to negate any suggestion of representation in that respect. Nevertheless, in principle, the reference to representative capacity should simply have been omitted, because it was inaccurate.
31 More problematic was the apparent intention that restricting particulars to those within the knowledge of the plaintiff was an appropriate qualification on the scope of r 15.12. The reference to knowledge of the plaintiff should have been implicit in the form of the order in any event; the fact that it needed express recognition should have suggested the inappropriateness of making an order by reference to r 15.12. The form of the order also reveals the inadequacy of the finding that there was other material within the knowledge of the plaintiff which had not been made available, without any indication as to what that knowledge was or even the category of information into which it fell. A specific factual finding would have formed the basis of a more precise order. Absent a greater degree of precision, the party ordered to provide further particulars will be unable to know what is required to comply with the order. That is particularly so where the order incorporates its "knowledge" without identifying the facts supposedly known by it.
Conclusions
32 Such inadequacies in the fact-finding process on an interlocutory application, and in the form of an interlocutory order, would usually not warrant the intervention of this Court. The additional factor which justifies intervention in the present case is the inappropriate use of r 15.12 as the basis for an order for particulars in indemnity proceedings which happen to involve the assessment of damages in respect of personal injuries. Rule 15.12 is apt to apply in proceedings brought by the person suffering personal injuries, but not in indemnity proceedings brought by the person who has paid workers' compensation. The inappropriateness of the rule in such cases is illustrated by the express exclusion of its operation with respect to proceedings under the Compensation to Relatives Act 1897 (NSW). Its application in this case thus constituted an error of principle. Further, it appeared in the course of argument that an order for particulars in such cases, by reference to r 15.12 was not uncommon in such proceedings in the District Court.
33 The order in the present case should be set aside. Some more particular form of order may nevertheless be appropriate. In particularising the payments for which indemnity was sought, the State produced a schedule indicating that no payments were made between 30 May 1996 and 23 October 2005. Why that was so is not known and was not explored in evidence on the application before the District Court. The fact that there is evidence on which a plaintiff seeks to rely which appears to contradict its claim is not necessarily a reason to require the provision of further particulars. To obtain an order for further particulars, the defendant must demonstrate the inadequacy and potential prejudice to it of having to prepare for trial and defend a case, the details of which are not sufficiently revealed in the pleadings, but could reasonably be expected to be.
34 There is no doubt that proceedings of this kind may present difficulties for the orderly conduct of a trial. The State indicated that, in the present case, the details of the worker's circumstances were not fully known to it and might only become apparent in the course of his evidence at trial. The position of the defendant is that it will either have to conduct such pretrial inquiries as it can to meet the case as pleaded, or be forced to seek an adjournment if it is not in a position to meet the claim which presents itself when the evidence is called. Such a situation is undesirable and unsatisfactory, and should be avoided if possible. However, it is not to be avoided by an order of the kind made in the present case.
35 So far as the costs of the present proceedings in this Court are concerned, the State has been successful in having the challenged order set aside. On the other hand, it was unsuccessful in seeking to establish that the onus of proof with respect to damages lay on the defendant. The latter point was, however, a relatively small part of the case presented on the appeal. The State having been successful on its primary argument and obtained both a grant of leave and an order setting aside the order made in the District Court, should have its costs of the appeal.
36 Accordingly, the following orders should be made: