Turner v State of New South Wales & Anor

25 Either wilfully or neglectfully, Paget and Hansen failed to interview those persons who were officers or employees of the Second Defendant involved in the prosecution of Randall Wiggers. 26 Paget and Hansen knew that such information from officers or employees of the Second Defendant involved in the prosecution of Randall Wiggers was essential in determining whether the charges should be laid.

27 In the alternative, Paget and Hansen failed to consider or disregarded information disclosed to them by officers or employees of the Second Defendant involved in the prosecution of Randall Wiggers to the effect that the Plaintiff had not committed the offences with which she was charged by them.

28 Sergeant Paget and Hansen knew that such information from officers or employees of the Second Defendant involved in the prosecution of Randall Wiggers would be fatal to the prosecution of the charges against the Plaintiff.

              33 In the circumstances, in laying and maintaining the charges against the Plaintiff, Sergeant Carl Paget and Sergeant Craig Hansen committed the tort of malicious prosecution in that they laid the charges without reasonable and probable cause and acted maliciously.

PARTICULARS OF LACK OF REASONABLE AND PROBABLE CAUSE

(a) Prior to the laying of the charges, Paget and Hansen knew that information from officers or employees of the Second Defendant involved in the prosecution of Randall Wiggers was essential in determining whether the charges should be laid.

(b) Prior to the laying of the charges, Paget and Hansen had available to them for interview officers or employees of the Second Defendant involved in the prosecution of Randall Wiggers for the sexual assaults perpetrated by him on the Plaintiff on 29 January 2000.

(c) In the alternative, prior to the laying of the charges, Paget and Hansen failed to consider or disregarded information disclosed to them by officers or employees of the Second Defendant involved in the prosecution of Randall Wiggers to the effect that the Plaintiff had not committed the offences with which she was charged by them.

(d) Prior to the laying of the charges, Paget and Hansen knew that such information from officers or employees of the Second Defendant involved in the prosecution of Randall Wiggers would be fatal to the prosecution of the charges against the Plaintiff.

37 In the circumstances, in maintaining the charges against the Plaintiff, the Second Defendant committed the tort of malicious prosecution in that it maintained the charges without reasonable and probable cause and acted maliciously.

The Second Defendant acted for a motive other than that of bringing a wrongdoer to justice in maintaining the charges when, on their face, they were plainly doomed to fail and at a time when they knew, through their officers and employees, that a previous attempt to prosecute and to obtain an AVO against the Plaintiff initiated by fellow officers of Paget and Hansen had:

(ii) caused great emotional stress to the Plaintiff." The defendants' contentions Prayer 1 10 Paragraphs 24 to 28 inclusive appear in that part of the Amended Statement of Claim in which facts are pleaded in support of an action for wrongful arrest and false imprisonment. In the defendants' submission they are objectionable because they have a tendency to cause prejudice, embarrassment or delay in the proceedings or are otherwise an abuse of the process of the court: see rule 14.28(1)(b) and (c). These paragraphs raise false issues in the context of a claim for trespass to the person by detention. Further, and more importantly, they are pleaded as if they are material facts, demanding traverse or admission. At their highest, they can be no more than particulars of the wrongfulness of the detention. The facts alleged in pars 24 to 28 are not material facts for the cause of action in respect of which they are tendered. 11 Further, these paragraphs are general in the extreme; there is no attempt to identify the officers or employees of the second defendant who are referred to in those paragraphs, nor is there any attempt to identify the information that it is said was "essential" before "the charges should be laid". The information that is said to be the subject of a failure to consider, or which was disregarded, and which was disclosed to the alleged prosecutors (by unidentified officers of the second defendant) is not specified. The defendants submit that such general, non-specific, vague and unparticularised allegations must necessarily embarrass a fair trial, and preclude a just, quick and cheap resolution of the real issues in the proceedings because they are not sufficiently defined to give rise to issues for trial. 12 That is said to be plain from what was said by Hunt J in Douglas & Anor v John Fairfax & Sons Limited & Anor [1983] 3 NSWLR 126 at 133, with respect to the purpose of particulars: "Their function is simply to relieve the other party of the need to investigate the issues of fact not identified by the particulars, or to show what will be put forward as constituting the case which has been pleaded." 13 His Honour referred to Mummery v Irvings Pty Limited (1956) 96 CLR 99 at 110 and Anchor Products Limited v Hedges (1966) 115 CLR 493 at 499.

14 The defendants submit that sub-pars 33(a) to (d) under the heading "Particulars of Lack of Reasonable and Probable Cause" are essentially in the same terms as pars 24 to 28. That observation supports the proposition that pars 24 to 28 purport to plead particulars and not material facts and, accordingly, are relevantly embarrassing or otherwise objectionable. Accordingly pars 33(a) to (d) should be struck out. 15 It is accepted by the defendants that the plaintiff bears the onus of establishing an absence of reasonable and probable cause and that the substance of the allegations appears to be relevant to that issue. However, the lack of particularity is said to be embarrassing, or is an abuse of the process of the court, because the paragraphs, and the allegations in them, fail relevantly to identify the plaintiff's case so as to achieve the overriding purpose of the just, quick and cheap determination of the real issues. 16 In A v New South Wales [2007] HCA 10; (2007) 233 ALR 584; 81 ALJR 763 the High Court of Australia dealt with the question of what the plaintiff needs to prove to establish absence of reasonable and probable cause in the following terms: " [82] It is convenient to deal at this point with the objective aspect of an allegation of absence of reasonable and probable cause. As Dixon J said in Brain , if there is no dispute that a prosecutor "believed in the truth of the charge, or considered its truth so likely that a prosecution ought to take place" and no question arises as to the materials upon which the opinion was founded, there remains the question, for the Court to decide, "whether the grounds which actuated [the prosecutor] suffice to constitute reasonable and probable cause.

[83] Reference is sometimes made in this context to the statement of Hawkins J in Hicks v Faulkner defining reasonable and probable cause:

"to be, an honest belief in the guilt of the accused based upon a full conviction, founded upon reasonable grounds, of the existence of a state of circumstances, which, assuming them to be true, would reasonably lead any ordinarily prudent and cautious man, placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed."

The objective element of the absence of reasonable and probable cause is thus sometimes couched in terms of the "ordinarily prudent and cautious man, placed in the position of the accuser" or explained by reference to "evidence that persons of reasonably sound judgment would regard as sufficient for launching a prosecution". Or, as Griffith CJ put it in Crowley v Glissan , the question can be said to be "whether a reasonable man might draw the inference, from the facts known to him, that the accused person was guilty".

[84] None of these propositions (nor any other equivalent proposition which might be formulated to describe the objective aspect of absence of reasonable and probable cause) readily admits of further definition. It is plain that the appeal is to an objective standard of sufficiency. The references to "reasonable" and "reasonably", to "ordinarily prudent and cautious", make that clear.

[85] Because the question in any particular case is ultimately one of fact, little useful guidance is to be had from decisions in other cases about other facts. Rather, the resolution of the question will most often depend upon identifying what it is that the plaintiff asserts to be deficient about the material upon which the defendant acted in instituting or maintaining the prosecution. That is an assertion which may, we do not say must, depend upon evidence demonstrating that further inquiry should have been made. (emphasis added)

[86] It is, nonetheless, important to recognise what, standing alone, may not suffice to show a want of objective sufficiency. It is clear that absence of reasonable and probable cause is not demonstrated by showing only that there were further inquiries that could have been made before a charge was laid. When a prosecutor acts on information given by others it will very often be the case that some further inquiry could be made. Lister v Perryman , where a charge was preferred on account of what had been reported to the prosecutor, is a good example of such a case. And as Lord Atkin rightly said in Herniman v Smith :

"It is not required of any prosecutor that he must have tested every possible relevant fact before he takes action. His duty is not to ascertain whether there is a defence, but whether there is a reasonable and probable cause for a prosecution."

[87] For like reasons it cannot be stated, as a general and inflexible rule, that a prosecutor acts without reasonable and probable cause in prosecuting a crime on the basis of only the uncorroborated statements of the person alleged to be the victim of the accused's conduct. Even if at trial of the offence it would be expected that some form of corroboration warning would be given to the jury, the question of absence of reasonable and probable cause is not to be decided according to such a rule. The objective sufficiency of the material considered by the prosecutor must be assessed in light of all of the facts of the particular case."

17 According to the defendants, the emphasised passage in par [85] demonstrates that, on the case apparently relied on by the plaintiff, one of the "real" issues is what was available to the alleged prosecutors, Paget and Hansen, which they allegedly failed to follow through, consider or evaluate. In order to "relieve [the defendants] of the need to investigate the issues of fact not identified by the particulars, or to show what will be put forward as constituting the case which has been pleaded" (see Douglas above), it is necessary for the plaintiff (the onus-bearer) to identify what the defendants could and should have done. That must require identification of what it is that the plaintiff asserts to be deficient - see A v New South Wales at [85] (supra).

18 The defendants submit that without details of what is asserted in par 33 (a) to (d), there is a high probability that at the trial the plaintiff will attempt to lead evidence that is of such a degree of particularity that the defendants, without notice of it, will be placed in difficulty. As Hunt J said in Douglas: "Where a party seeks to lead evidence in support of his pleaded case which is outside the particulars which have been supplied of that case, it is for the trial judge to consider whether such evidence unfairly amounts to a case of which the other party has had insufficient warning: Vlasic v Federal Capital Press of Australia Pty Ltd (1976) 9 ACTR 1, at 6. It is a matter within he discretion of the trial judge whether to permit the evidence (subject in some cases to an amendment of the particulars, but in any event subject to terms so as to meet any prejudice to the other party) or to hold the party whose particulars were deficient to the issues of fact to be investigated as limited by those particulars: Mummery v Irvings Pty Ltd (at 110); Leotta v Public Transport Commission of New South Wales (1976) 50 ALJR 666, at 668; 9 ALR 437, at 446. The exercise of that discretion must necessarily depend upon many things, including the amount of warning that the other party has had that such evidence was to be led. The relief which is granted to a party at the trial must be founded on the pleadings and not upon any particulars which have been given of the matters alleged in those pleadings: Dare v Pulham (1982) 57 ALJR 80, at 82; 44 ALR 117, at 121. What course should usually be followed by the trial judge in the various situations which may arise was discussed in Reiter v Publishing and Broadcasting Ltd [1983] 2 NSWLR 137(n)." 19 The defendants argue that to permit such generalised and uninformative pleading and particularisation to go for trial would be inconsistent with the principles expounded in Nowlan v Marson Transport Pty Ltd (2001) 53 NSWLR 116, and contrary to the overriding purpose of the Act and Rules: see s 56 Civil Procedure Act 2005. The plaintiff's contentions 20 In response to these submissions the plaintiff contends that none of the matters of which the defendants complain falls within the terms of rule 14.28(1)(b) or (c). The plaintiff responds that even if the material pleaded in the Amended Statement of Claim to which the defendants refer is arguably repetitive and unnecessary, it does not cause prejudice, embarrassment or delay in the proceedings or otherwise amount to an abuse of the process of the court. The plaintiff says that, to the extent that she may be criticised for having pleaded some facts, the burden of disproving which lies upon the defendants, the terms of rule 14.10 are permissive, not prohibitive. Finally, the plaintiff submits that, to the extent that the allegedly offending portions of the Amended Statement of Claim have been made the subject of the defendants' request for further and better particulars, they are by definition sufficiently certain to withstand scrutiny as a pleading. In such circumstances the high watermark of the defendants' entitlement to relief should be an order to provide appropriate particulars. 21 Exhibit 1 in the proceedings before me is a letter dated 13 December 2006 from the solicitor for the defendants to the plaintiff's solicitor. Relevant portions of that letter are as follows: - "I refer to your telephone conversation with . . . my office today and advise that I am instructed to consent to the filing of the plaintiff's Amended Statement of Claim (in the form provided in the "fifth proposed Amended Statement of Claim" enclosed with your letter of 4 December 2006), however I would be grateful if you would could give consideration to the following matters:

3. I assume that the material facts pleaded in the Amended Statement of Claim are confined to the cause of action identified in the heading under which they are pleaded and, therefore, paragraphs 24 - 28 are not pleaded in support of the third count of malicious prosecution. Whilst I note that there is no heading of "wrongful arrest and false imprisonment", I take from paragraph 29 that this is the cause of action in support of which paragraphs 21 - 29 are pleaded. It would be helpful for the parties and the Court if such heading were to be included.

My clients' consent to the filing of the Amended Statement of Claim is not conditional on the above matters being addressed, but is conditional upon the plaintiff answering a request for further and better particulars of the Amended Statement of Claim." 22 In my opinion, this is not a case in which any portion of the Amended Statement of Claim should be struck out. On one view, the current pleading contains material that is probably unnecessary. Whether or not that is the result of it being the latest of several versions is unclear. However, by the time the fifth edition was produced, the defendants' representatives were prepared to consent to its filing. This is not conclusive against the present application, but is of some significance, particularly in the light of s 56 of the Civil Procedure Act 2005. Moreover, the letter referred to suggests that appropriate particulars would condition the defendants' consent. That seems to me to be an appropriate way to approach the matter. The defendants, however, are entitled to have answers to proper requests for further and better particulars. That issue is the subject of prayers 2 and 3 in the Notice of Motion. Prayers 2 and 3 23 Between 25 January 2007, the date of the defendants' original request for further and better particulars, and 14 August 2007, correspondence on that topic passed between the parties' respective solicitors. The plaintiff answered some requests but in a letter dated 9 July 2007, the solicitor for the plaintiff refused to answer any more. By letter dated 14 August 2007 from the defendants' solicitor to the plaintiff's solicitor, the former set out the following summary of requests for further and better particulars that either remained unanswered or which the defendants' solicitor considered had been inadequately or inappropriately answered: - As to paragraph 8 of the Amended Statement of Claim

Question 3 Does the plaintiff allege that any other person maintained the charges? Not at this stage.

Question 6 Does the plaintiff allege that any other person prosecuted the charges before Magistrate Maloney? Not at this stage.

As to paragraph 11(e) "particulars of lack of reasonable and probable cause" of the Amended Statement of Claim

Question 10 As to particular (e), please identify the statements which allegedly contradicted facts which could support the charges. This is a matter for evidence.

As to paragraph 11(j) "particulars of lack of reasonable and probable cause" of the Amended Statement of Claim

Question 11 As to particular (i), what are the facts, matters and circumstances relied upon to allege that Willer's statement did not support the laying of the charges? This is a matter for evidence.

As to paragraph 11(k) "particulars of lack of reasonable and probable cause" of the Amended Statement of Claim

Question 12 As to particular (k), what are the facts, matters and circumstances relied upon to allege that Starling knew that Willer had an alleged animus towards the plaintiff? This is a matter for evidence.

As to paragraph 11(l) "particulars of lack of reasonable and probable cause" of the Amended Statement of Claim As to particular (l), what are the facts, matters and circumstances relied upon to allege that there were glaring inconsistencies in the statement? This is a matter for evidence.

As to paragraph 11(m) "particulars of lack of reasonable and probable cause" of the Amended Statement of Claim

Question 14 As to particular (m), what are the facts, matters and circumstances relied upon to allege that Willer's evidence would not be accepted by the Court? This is a matter for evidence.

As to paragraph 11(p) "particulars of lack of reasonable and probable cause" of the Amended Statement of Claim

Question 18 As to particular (p), which witnesses does the plaintiff allege Starling should have followed up? This is a matter for evidence.

Question 19 On what basis does the plaintiff allege that Starling should have clarified witnesses versions of events? This is a matter for evidence.

Question 26 What are the facts, matters and circumstances relied upon by the plaintiff to allege that Starling had the power to withdraw or seek to withdraw the charges against the plaintiff would fail? There appear to be words missing to this request which in its current form does not make sense.

In relation to question 26, I confirm I advised in my letter dated 24 April 2007 which words should be omitted from the question. I confirm that Question 26 should now read:

What are the facts, matters and circumstances relied upon by the plaintiff to allege that Starling had the power to withdraw or seek to withdraw the charges against the plaintiff?

As to paragraph 11(q) "particulars of lack of reasonable and probable cause" of the Amended Statement of Claim

Question 27 As to particular (q), what are the facts, matters and circumstances relied upon to assert that on the 17 March 2000 Starling knew or should have known that any prosecution of the charges? See 26.

In relation to question 27, I confirm I advised in my letter dated 24 April 2007 which words should be inserted into the question. I confirm that Question 27 should now read:

As to particular (q), what are the facts, matters and circumstances relied upon to assert that on the 17 March 2000 Starling knew or should have known that any prosecution of the charges would fail?

As to paragraph 17 of the Amended Statement of Claim

Question 49 Does the plaintiff allege any other person prosecuted the AVO? Not at this stage.

Question 50 If so, please specify: (a) the name of the alleged prosecutor (b) the nature of the application alleged to have been maliciously prosecuted; (d) the facts, matters and circumstances upon which the plaintiff relies to make such allegation. Not applicable.

As to paragraph 19(a) "particulars of malice" of the Amended Statement of Claim

Question 62 As to particular (a), what are the facts, matters and circumstances relied upon by the plaintiff to allege that Lang acted to apply pressure upon the plaintiff in respect of her complaints against Randall Wiggers? This is a matter for evidence.

As to paragraph 19(b) "particulars of malice" of the Amended Statement of Claim

Question 65 As to particular (b) what are the facts, matters and circumstances relied upon by the plaintiff to allege that Starling acted to harass and intimidate the plaintiff in respect of her complaints against Randall Wiggers? This is a matter for evidence.

Question 68 Please provide details of the alleged harassment and the dates of such harassment? This is a matter for evidence.

Question 69 Please provide details of the alleged intimidation and the dates of such intimidation? This is a matter for evidence.

As to paragraph 24 of the Amended Statement of Claim

Question 77 Please identify by name the officers or employees of the second defendant that the plaintiff alleges Paget and Hansen had available to them. This is a matter for evidence.

Question 78 What are the facts, matters and circumstances relied upon to allege that Paget and Hansen had those officers available to them? This is a matter for evidence.

Question 80 What information does the plaintiff allege each of those officers would have provided to Paget and Hansen, had they been interviewed? This is a matter for evidence.

As to paragraph 26 of the Amended Statement of Claim

Question 83 Please identify with specificity the information referred to as "such information". Information about the evidence given by the plaintiff and its reliability.

Question 85 What are the facts, matters and circumstances relied upon to allege that Paget and Hansen knew that such information from officers or employees of the second defendant involved in the prosecution of Randall Wiggers was essential in determining whether charges should be laid? This is a matter for evidence.

As to paragraph 27 of the Amended Statement of Claim Question 86 Please identify each officer alleged to have disclosed information to Paget and Hansen and the information they disclosed. The alternative allegation is prefaced on the assumption that such enquiries were made. The plaintiff does not know if they were. If this is established, further appropriate particulars will be provided.

Question 87 What are the facts, matters and circumstances relied upon to allege that those officers disclosed the information? The alternative allegation is prefaced on the assumption that such enquiries were made. The plaintiff does not know if they were. If this is established, further appropriate particulars will be provided.

Question 88 What are the facts, matters and circumstances relied upon to allege that Paget and Hansen disregarded the information disclosed? The alternative allegation is prefaced on the assumption that such enquiries were made. The plaintiff does not know if they were. If this is established, further appropriate particulars will be provided.

Question 89 On what basis does the plaintiff allege that Paget and Hansen failed to consider the information? The alternative allegation is prefaced on the assumption that such enquiries were made. The plaintiff does not know if they were. If this is established, further appropriate particulars will be provided.

As to paragraph 28 of the Amended Statement of Claim

Question 90 Please identify the information referred to as "such information". The alternative allegation is prefaced on the assumption that such enquiries were made. The plaintiff does not know if they were. If this is established, further appropriate particulars will be provided

Question 91 How does the plaintiff allege that the information would have been fatal to the prosecution of the charges? The alternative allegation is prefaced on the assumption that such enquiries were made. The plaintiff does not know if they were. If this is established, further appropriate particulars will be provided.

Question 92 What are the facts, matters and circumstances relied upon to allege that Hansen and Paget knew that the information referred to would be fatal to the prosecution of the charges against the plaintiff? The alternative allegation is prefaced on the assumption that such enquiries were made. The plaintiff does not know if they were. If this is established, further appropriate particulars will be provided.

As to paragraph 33(a) "particulars of lack of reasonable and probable cause" of the Amended Statement of Claim

Question 103 As to particular (a), please identify with specificity the information referred to. See 83.

Question 104 Please identify the officers or employees of the second defendant alleged to have held such information. This is a matter for evidence.

As to paragraph 33(b) "particulars of lack of reasonable and probable cause" of the Amended Statement of Claim

Question 106 As to particular (b), please identify by name the officers or employees of the second defendant that the plaintiff alleges Paget and Hansen had available to them. This is a matter for evidence.

Question 109 What information does the plaintiff allege each of those officers would have provided to Paget and Hansen, had they been interviewed? Exculpatory information.

As to paragraph 33(c) "particulars of lack of reasonable and probable cause" of the Amended Statement of Claim

Question 110 As to particular (c), please identify each officer alleged to have disclosed information to Paget and Hansen and the information they disclosed. The alternative allegation is prefaced on the assumption that such enquiries were made. The plaintiff does not know if they were. If this is established, further appropriate particulars will be provided

Question 111 What are the facts, matters and circumstances relied upon to allege that those officers disclosed the information? The alternative allegation is prefaced on the assumption that such enquiries were made. The plaintiff does not know if they were. If this is established, further appropriate particulars will be provided.

Question 112 What are the facts, matters and circumstances relied upon to allege that Paget and Hansen disregarded the information disclosed? The alternative allegation is prefaced on the assumption that such enquiries were made. The plaintiff does not know if they were. If this is established, further appropriate particulars will be provided.

Question 113 On what basis does the plaintiff allege that Paget and Hansen failed to consider the information? The alternative allegation is prefaced on the assumption that such enquiries were made. The plaintiff does not know if they were. If this is established, further appropriate particulars will be provided.

As to paragraph 33(d) "particulars of lack of reasonable and probable cause" of the Amended Statement of Claim

Question 114 As to particular (d), please identify the information referred to as "such information". The alternative allegation is prefaced on the assumption that such enquiries were made. The plaintiff does not know if they were. If this is established, further appropriate particulars will be provided.

As to paragraph 33(f) "particulars of lack of reasonable and probable cause" of the Amended Statement of Claim

Question 119 What are the facts, matters and circumstances, other than as specified in particulars (a) - (e), relied upon to allege that Paget and Hansen ought to have known that the charges would fail? This is a matter for evidence.

As to paragraph 33(g) "particulars of lack of reasonable and probable cause" of the Amended Statement of Claim

Question 120 As to particular (g), what are the facts, matters and circumstances, other than as specified in particulars (a) - (f), relied upon to allege that Paget and Hansen did not hold such belief? This is a matter for evidence.

As to paragraph 33(a) "particulars of malice" of the Amended Statement of Claim

Question 123 For what purpose does the plaintiff allege she was being pressured? This is pleaded.

As to paragraph 37(a) "particulars of lack of reasonable and probable cause" of the Amended Statement of Claim

Question 128 At what point after the second defendant became the prosecutor does the plaintiff allege the second defendant should have known the charges would fail? This is a matter for evidence.

As to paragraph 37(b) "particulars of lack of reasonable and probable cause" of the Amended Statement of Claim

Question 132 What are the facts, matters and circumstances relied upon to allege that the second defendant did not undertake adequate investigation prior to the laying of the charges? This is a matter for evidence.

As to paragraph 37(c) "particulars of lack of reasonable and probable cause" of the Amended Statement of Claim

Question 133 As to particular (c), what are the facts, matters and circumstances relied upon to allege that the second defendant knew that Paget and Hansen had not undertaken adequate investigation? This is a matter for evidence.

As to paragraph 37(d) "particulars of lack of reasonable and probable cause" of the Amended Statement of Claim

Question 134 As to particular (d), what are the facts, matters and circumstances relied upon to assert that the second defendant did not have a belief that the probability of obtaining a conviction or convictions against the plaintiff on the charges was such that upon the grounds of justice the maintaining of the charges against the plaintiff was warranted? This is a matter for evidence.

As to paragraph 37(a) "particulars of malice" of the Amended Statement of Claim

Question 135 As to particular (a), what is the alleged improper motive for which the second defendant acted? This is a matter for evidence.

Question 136 What are the facts, matters and circumstances relied upon to allege that the second defendant acted for such improper motive? This is a matter for evidence.

Question 137 On what basis is it alleged that the charges were "plainly doomed to fail"? This is a matter for evidence.

Question 138 On what basis is it alleged that the failure to obtain the AVO was relevant to the prosecution of the charges by the second defendant? This is particularised in the Amended Statement of Claim.

Question 139 On what basis is it alleged that stress to the plaintiff was relevant to the prosecution of the charges? The relevance is to malice only.

As to paragraph 39 of the Amended Statement of Claim

Question 162 What are the facts, matters and circumstances relied upon to allege that Starling acted with total and contumelious disregard to the plaintiff's right to unimpaired dignity and reputation? This is a matter for evidence.

Question 163 What are the facts, matters and circumstances relied upon to allege that Starling acted to benefit himself? This is a matter for evidence.

Question 164 What are the facts, matters and circumstances relied upon to allege that Starling acted to benefit Randall Wiggers? This is a matter for evidence.

Question 165 What are the facts, matters and circumstances relied upon to allege that Lang acted with total and contumelious disregard to the plaintiff's right to unimpaired dignity and reputation? This is a matter for evidence.

Question 166 What are the facts, matters and circumstances relied upon to allege that Lang acted to benefit himself? This is a matter for evidence.

Question 167 What are the facts, matters and circumstances relied upon to allege that Lang acted to benefit Randall Wiggers? This is a matter for evidence.

Question 168 What are the facts, matters and circumstances relied upon to allege that Paget acted with total and contumelious disregard to the plaintiff's right to unimpaired dignity and reputation? This is a matter for evidence.

Question 169 What are the facts, matters and circumstances relied upon to allege that Paget acted to benefit himself? This is a matter for evidence.

Question 170 What are the facts, matters and circumstances relied upon to allege that Paget acted to benefit Randall Wiggers? This is a matter for evidence.

Question 171 What are the facts, matters and circumstances relied upon to allege that Hansen acted with total and contumelious disregard to the plaintiff's right to unimpaired dignity and reputation? This is a matter for evidence.

Question 172 What are the facts, matters and circumstances relied upon to allege that Hansen acted to benefit himself? This is a matter for evidence.

Question 173 What are the facts, matters and circumstances relied upon to allege that Hansen acted to benefit Randall Wiggers? This is a matter for evidence.

As to paragraph 40(a) "particulars of exemplary damages" of the Amended Statement of Claim

Question 174 As to particular (a), in what way was the arrest of the plaintiff high-handed, calculating, humiliating and oppressive? This is a matter for evidence.

Question 175 In what way was the imprisonment of the plaintiff high-handed, calculating, humiliating and oppressive? This is a matter for evidence.

Question 176 In what way was the charging of the plaintiff high-handed, calculating, humiliating and oppressive? This is a matter for evidence. 24 The Court of Appeal recently considered the purpose of particulars in Allianz Australia Insurance Ltd v Newcastle Formwork Constructions Pty Ltd [2007] NSWCA 144. At [18], the Court said: 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." 25 The plaintiff contends that she does not know the basis upon which it is asserted that the defendants are entitled to anything more than that which is currently particularised in the Amended Statement of Claim. It is submitted on behalf of the plaintiff that the case against the defendants is patent on the face of the pleading. The letter of 24 April 2007 asserts an entitlement to additional particulars without articulating the basis of that entitlement. An analysis of each of the requests and corresponding paragraphs in the Amended Statement of Claim makes it clear that the nature of the plaintiff's case is fully disclosed. The defendants appear to be pursuing further information in the nature of the evidence that the plaintiff might call to support her case, as opposed to an elaboration of the facts as pleaded.

26 In my opinion, there is some merit on each side of the present dispute. I have therefore attempted to identify those questions which accommodate the defendants' concerns, adumbrated in their submissions, and to take account of the fact that the original requests were substantial and mostly answered. In all of the circumstances, having regard to the test identified in par [24], and bearing in mind that the purpose of particulars is to provide what is reasonably necessary to identify the case to be made out at trial, I consider that, out of the questions listed above, the plaintiff should be required to provide answers to the following: - 12, 14, 62, 65, 68, 69, 109, 119, 120, 132, 133, 134, 135, 162, 163, 164, 165, 166, 167, 168, 169, 170, 171, 172, and 173. 27 The costs of the Notice of Motion should be the defendants' costs in the proceedings.

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