[2005] QDC 054
DISTRICT COURT
CIVIL JURISDICTION
JUDGE ROBIN QC
No D11 of 2004
AUSTRALIAN MINING AND INDUSTRIAL COMMUNICATIONS PTY LTD (ACN 082 253 450) | Plaintiff |
and | |
PARKLANDS BLUE METAL PTY LTD (ACN 010 471 548) | Defendant |
MT ISA
DATE 28/02/2005
DAY 1
EXTRACT OF PROCEEDINGS – RULING
CATCHWORDS: Uniform Civil Procedure Rules r150, r155, r161 – pleading of damages – plaintiff made a claim for its usual charge out rate of $400 per day for a forklift for the whole time while repairs were effected following its return after a hiring by the defendant – pleaded defence disputed the correctness of the number of days claimed, but not the daily rate – request for particulars capable of being regarded as enquiring about the appropriateness of the daily rate was answered by the plaintiff’s repetition of its original calculation, then never pursued – at trial the defendant unsuccessfully sought striking out of the damages claim (and another claim) as not properly pleaded – plaintiff ordered to give the particulars sought on basis of a notional amendment of the defence.
ORDER
This is an unusual example of a civil trial proceeding in the Court at Mt Isa. It has been slow to get underway, and the reason for that is the defendant is raising criticisms of the state of the plaintiff's pleading including the plaintiff's particulars.
There was a dry hire of a forklift at an agreed rate of $400 per day. The equipment went back to the plaintiff late but the agreed rate was paid so long as the defendant retained the forklift. It came back to the plaintiff, according to it, in a damaged condition. Repairs were effected for charges set out in the plaintiff's pleading, which the defendant did not accept, with a belief being pleaded that those charges were excessive.
The bulk of the plaintiff's claim is for $400 per day lost hire for a period of 25 weeks throughout which, allegedly, the forklift could not be hired out, although there were customers available in such numbers that for every single day a customer would have been available to pay $400 per day.
The plaintiff brings alternative claims in contract, negligence and bailment. The second, possibly the first, are or may be want of reasonable care claims, but the bailment claim is something much closer to an absolute liability situation, although it may nowadays be more accurate to say that what constitutes reasonable care of a chattel may be different in a bailment context.
In respect of the negligence aspect is the plaintiff's case that the forklift was damaged in an accident in the mine at Mount Isa and that that is the main cause of the unavailability of the forklift in good condition for hiring out.
Mr Radcliff submitted that the plaintiff in giving particulars of the defendant's failings as a bailee as follows:
"The defendant has failed to take proper care of the machine while it was in the defendant's control and, instead, has allowed the machine to be damaged.",
related its whole claim to the accident in the mine and physical damage occasioned there. Mr Radcliff sought to limit the plaintiff to making a case based on that damage.
I am not persuaded of his point and rather think that in the bailment claim, which is the one being particularised, what counts is whether the machine was damaged when returned to the plaintiff rather than exactly when and how it got damaged in bailment. If I recall correctly, the onus is on the bailee to show that proper care is taken. For the other heads of claim, the plaintiff has, or may have to, prove want of proper care by the defendant.
In dollar terms, the more significant question is what Mr Radcliff has called a demurrage claim at $400 a day. He retracted a criticism that the defendant had not made it clear what days were included and it is clear from the particulars that the 25 weeks are those running from the 15th of June 2002. One must wonder how consistent that is with the information the Court has that hire was paid by the defendant for a month or so after that date, which was the one when the hire was to terminate; is that right?
MR RADCLIFF: That's right.
HIS HONOUR: That's a special problem. While the defence raised an issue as to whether the repair costs the plaintiff claims were paid were unreasonable and too high, no issue is raised in the defence regarding the validity or reasonableness of the $400 per day allegedly lost.
What the defence said in that regard is:
"The defendant denies the allegations in paragraph 18 of the statement of claim because the plaintiff is unable to verify that they would have been able to hire out the fork lift for the 25 week period at $400 a day. Therefore, the amount claimed of $50,000 is excessive and should be reduced accordingly."
The only opposition made to that aspect of the plaintiff's claim is that the $400, regarding which nothing is said, might not have been available to the plaintiff for as many days as the plaintiff asserted. However, the defendant revealed an interest in going behind the $400 per day figure in a request for particulars of the 21st of January 2004 which inquired about:
"(a) the manner and calculation of the alleged hire charge of $400 a day; (b) full and precise particulars of the hire cost of like hire machines to establish that the hire charge is fair and reasonable; (c) the duration of the alleged period for which the machine could not be hired; and (d) full and precise particulars for the reason for the extended period for which the machine could not be hired."
It seems to me that (a) is the one of most importance among those.
The plaintiff's response dated 27th of January 2004 in respect of (a) was that, "The plaintiff could not hire the machine out at its ordinary charge-out rate of $400 per day." That request for particulars was not followed up as, in my opinion, it could have been and in retrospect probably should have been. The defendant may have been able to resort to rules 162 or 163, whichever is the one authorising the Court to impose severe sanctions on a party not providing particulars as ordered.
Mr Radcliff relies on a group of authorities, copies of which he has handed to the Court, which emphasise that the new pleading rules in the UCPR ought to be taken seriously and, in particular, rules requiring pleading of details of damages claims.
The cases are Meredith v. Palmcam Pty Ltd [2001] 1 Qd.R. 645, a decision of the Court of Appeal, Moynihan J's decision in Cook's Construction Pty Ltd v. Stork ICM Australia Pty Ltd BC200401348, SC 10993 of 2001, 16 March 2004, also reported, it seems, at 2004 QSC 66, and the final case is a decision of Judge McGill in Millhouse IAG Pty Ltd v. Environautics Pty Ltd [2000] QDC 196. They all are matters that involve interlocutory arguments about particulars and they do emphasise the importance of compliance with the new rules.
Mr Radcliff's argument is that there is even more reason to hold litigants strictly to the rules of pleading once the trial is reached. From one point of view, obviously, the luxury of interlocutory applications is no longer available.
To an extent perhaps, I am influenced by my view of what attempting to do justice according to law in a centre such as Mount Isa might require. In the not too distant past it has been identified, unflatteringly, and perhaps inappropriately, as palm tree justice. But even putting such considerations aside, I think that the defendant's complaints about being brought to Court to face a substantial damages claim which has not been properly particularised are balanced by the defendant's own failure by its pleadings to suggest that any issue was being raised about the appropriateness of $400 as a daily charge in respect of such dates as the plaintiff could show were relevant. It must be conceded that by its request for particulars, the defendant clearly evinced an interest in that issue, without attracting any useful response from the plaintiff. As I said, the matter was not pursued further.
I am not prepared to accept that by its request for particulars the defendant changed the issues in a way that required looking behind the hire of $400 per day. I think, assuming the defence was in order, the request for particulars was a proper one and the defendant ought to have been supplied with those particulars in order to know the claim it faced. Not the least of reasons for providing the other side with details of that kind is that it may facilitate a resolution of, if not the whole matter, at least certain quantum issues. I think the plaintiff ought to be ordered to give the particulars requested.
Technically, maybe, the defendant ought to be ordered to amend its defence. I do not know if it is necessary to go through that formality now, but it has been made clear today that the defendant seriously wishes to pursue whether $400 is indeed the correct daily amount or whether it is something more modest if an exercise is embarked on of trying to identify what the plaintiff's actual losses were, as opposed to the gross income it might have got from hiring the forklift.
I am going to order you to give the particulars. You will have to get instructions about it, presumably, won't you?
MR BASSETT: Yes, your Honour.
HIS HONOUR: I refuse Mr Radcliff's application to strike out the $400 per day claim, likewise, any claim based on damage to the fork lift that did not arise in the accident in the mine.
