DISTRICT COURT OF QUEENSLAND

2. [1]
   This is an application seeking orders that the plaintiff serve on the second defendant further and better particulars of the plaintiff’s statement of claim to comply with Part 2 of Chapter 6 of the Uniform Civil Procedure Rules, and serve on the second defendant an updated list of documents signed by the plaintiff and in all respects complying with Part 1 of Chapter 7 of the Uniform Civil Procedure Rules.  The application proceeded without an oral hearing.  There was no material filed on behalf of the plaintiff.

Further and better particulars

2. [2]
   I take it that the application is seeking an order in relation to that aspect of the plaintiff’s statement of claim where the quantification of the loss claimed by the plaintiff is pleaded. The plaintiff’s claim is brought against an insurance company and against an insurance broker or intermediary. The plaintiff is the owner of a motor vehicle which on or about 19 June 2000 was involved in a motor vehicle accident and suffered damage.  The plaintiff alleged that in May 2000 he had done all that could reasonably have been done by him to effect insurance in relation to the truck, and that if there was no insurance cover provided by the second defendant, the first defendant was in breach of his contract, and as a result of that breach the plaintiff had sustained loss and damage.  In the alternative there is a claim against the second defendant pursuant to s 14 of the Insurance Agents and Brokers Act 1984.

3. [3]
   Paragraph 10 of the amended statement of claim provided the following particulars of the loss and damage alleged to have been suffered by the plaintiff:

was clarified, or perhaps complicated, by further and better particulars filed on behalf of the plaintiff on 28 August 2002, the same day as the amended statement of claim.  This listed a number of matters in respect of which repairs had been undertaken to the truck, and alleged that the truck was repaired by a named company at a cost of $6,069.75.  It was also stated that the plaintiff had lost earnings at the rate of $3,000 per week for a period of nine months, this being the amount he would otherwise have been paid by a transport operator.

4. [4]
   On 10 September 2003 the second defendant’s solicitors wrote to the plaintiff’s solicitor pursuant to r 444 complaining that the plaintiff had failed to provide full particulars of his claim for damages in relation to repairs and loss of earnings.  The relief sought in the letter was said to be that the plaintiff provide “full particulars of the repairs carried out to the truck as well as particulars of the plaintiff’s loss of earnings.”  No mention was made in that letter of the particulars filed on 28 August 2002.  In response on 12 September 2003 the solicitors said that the particulars were disclosed in relation to the repairs in the documents which had been disclosed, being documents 17 to 24 inclusive in the list of documents.  In relation to the claim for loss of earnings it was said that the plaintiff’s claim was $3,000 per week from the date of the accident, consistently with the earlier particulars, for a period of two years, with the precise date to be available shortly.  Although that seems inconsistent with the filed particulars, in each case the nature of the claim is I think clear enough:  $3,000 per week for a nominated period. 

5. [5]
   On 1 October 2003 the second defendant’s solicitor wrote to the plaintiff’s solicitor asserting that it was not apparent from the pleadings and the documents disclosed whether the truck repairs had been completed and if so how much the repairs cost, what repairs were carried out prior to the advice that a further $30,000 in repairs was required and at what cost were these repairs carried out, and whether the invoices and quotations disclosed relate to the original repairs or the repairs which took place after the plaintiff was advised that a further $30,000 in repairs was required.  Those particulars have apparently not been forthcoming, and on 13 October a letter under r 444 was sent again seeking full particulars of the repairs carried out to the truck and full particulars of the plaintiff’s loss of earnings, but not identifying what particulars were sought.

6. [6]
   On their face the particulars provided of the repairs in the document filed on 28 August 2002 are apparently sufficient.  It is not possible to tell by looking at them that they are not proper particulars of the loss claimed in relation to the cost of repair.  Presumably the plaintiff’s case is that, had the insurance policy been effected, this would have been covered by the insurer.  The difficulty with this however is that on the face of it this does not particularise a claim for $30,000 as the “estimated” cost of repairs, and the second defendant may well be in some doubt as to whether the plaintiff is only claiming by way of cost of repairs the amount set out in the particulars, or whether there are some additional repairs which have not been undertaken and in respect of which there is some estimate claimed.  In these circumstances the second defendant is I think entitled to further particulars, although it is unhelpful simply to seek full particulars complying with the requirements of the rules.  When there has already been some attempt to provide particulars, a request for further and better particulars should specify the matters in respect of which further particularity is sought.  I should not have to do that myself, but in the circumstances I will not simply reject that part of the application, but will formulate what seems to me to be an appropriate request for particulars bearing in mind the terms of the amended statement of claim and such particulars as have already been given.  This is reflected in the order below.

Further and better disclosure

7. [7]
   The second defendant’s complaint here is essentially that there has not been proper disclosure of documentation in relation to loss of earnings. The plaintiff’s solicitors in the letter of 12 September 2003 forwarded a bundle of tax invoices from the transport operator named in the particulars filed in August 2002, and advised they were requesting tax returns from the plaintiff.  The second defendant’s argument here seems to be that the plaintiff must have other documents relating to his claim for loss of earnings, and they have not been disclosed and ought to be disclosed.

8. [8]
   The claim for loss of earnings may be something for which there is a large amount of documentation available, or it may not. Some people just do not generate large numbers of documents. I am concerned whether there really is material before me on the basis of which I could draw the inference that there has been a failure to make proper disclosure in the present case. The alternative is that this is a case where the plaintiff just does not have any great number of documents relevant to that issue to disclose. However, after carefully considering the letter from the plaintiff’s solicitor of 12 September 2003 it appears to be accepted in that letter that there was at least one category of documents that existed and were in the possession of the plaintiff and which had not been included in the list of documents, namely the bundle of tax invoices from G R George, and that tax returns would be in the same category if the plaintiff had them.  Strictly speaking that letter may not amount to an admission that the plaintiff has tax returns which have not been disclosed, but the assumption underlying the letter, that there would be such tax returns, is I think reasonable.  If there were no such tax returns, that requires more careful attention to the question of whether any other documents in the possession of the plaintiff might be directly relevant to the claim for loss of earnings.

9. [9]
   It must be remembered that under the Uniform Civil Procedure Rules it is not all documents which might have anything to do with a claim for loss of earnings which are subject to disclosure; it is only documents directly relevant to an allegation in issue in the pleadings which have to be disclosed: r 211(1)(b).  I would not think that that would necessarily include any document which had anything to do with any money the plaintiff earned during the relevant period, although documentation showing what earnings the plaintiff would have had, perhaps by reference to what earnings he achieved in other periods when he had the truck available, would be directly relevant, as would documents showing what earnings he achieved during the period when he did not have the truck available.  The same would apply to documents directly relevant to expenditure which would have been saved when the truck was not available.

10. [10]
    In these circumstances, there are reasonable grounds for thinking that the plaintiff has failed to make proper disclosure in relation to the question of loss of income. It is clear that the second defendant has asked for disclosure of documents relating to damages, so r 221 has been satisfied.^[1]  In all the circumstances I think the appropriate course is to make an order under r 223(1) that the plaintiff disclose to the second defendant all documents directly relevant to the loss of income claimed by the plaintiff in the action in accordance with that sub-rule.

Conclusion

11. [11]
    There will therefore be orders that:

1. The plaintiff file and serve on the defendants the following further and better particulars of the plaintiff’s claim for damages:

1. (a)
   if any repairs have been carried out to the truck referred to in the statement of claim other than those identified in particulars filed on 28 August 2002, state what repairs were carried out, by whom they were carried out and the total cost of such repairs to the plaintiff;

2. (b)
   if the plaintiff claims as part of his loss the cost of making repairs which have not yet been made to the truck referred to in the statement of claim, what further repairs are alleged to be necessary, and what is the plaintiff’s best estimate of the cost of those repairs,

within 14 days.

2. The plaintiff disclose to the second defendant within 21 days all documents in the possession or under the control of the plaintiff directly relevant to the plaintiff’s claim for loss of income in the action, in accordance with r 223(1).

12. [12]
    These are not precisely the orders sought in the application, but on the whole I think they are close enough to them to justify ordering the plaintiff to pay the second defendant’s costs of and incidental to the application to be assessed.