Citation: Turner v State of New South Wales & Anor [2007] NSWSC 1081
Court: Supreme Court of New South Wales, Common Law Division
Date: 3 October 2007
Judge(s): Harrison J
Background
The plaintiff was a police officer who alleged she was sexually assaulted by a colleague in January 2000. After she complained and her colleague was charged, the New South Wales Police initiated a series of prosecutions against her over the following four and a half years. All prosecutions against her failed, and apprehended violence order proceedings against her were eventually terminated after surveillance evidence said to exculpate her was found to have been destroyed while in police custody.
The plaintiff commenced proceedings against the State of New South Wales (representing NSW Police) and the Director of Public Prosecutions, pleading three causes of action in malicious prosecution, as well as wrongful arrest and false imprisonment. Her Amended Statement of Claim was detailed in its allegations, including that the investigating officers failed to interview or deliberately disregarded information from DPP officers that would have been fatal to any prosecution of the plaintiff.
The defendants filed a Notice of Motion seeking to strike out certain paragraphs of the Amended Statement of Claim, and alternatively seeking orders requiring the plaintiff to provide proper answers to a request for further and better particulars. That request had required approximately 200 responses.
Legal Issues
- Whether paragraphs 24 to 28 of the Amended Statement of Claim (and related sub-paragraphs) should be struck out under UCPR r 14.28(1)(b) or (c) as tending to cause prejudice, embarrassment or delay, or as an abuse of process
- Whether those same paragraphs were properly pleaded as material facts or were, at most, mere particulars of another element of the claim
- Whether the plaintiff was required to provide further answers to the defendants' detailed request for particulars, and if so, to which specific questions
Decision
Harrison J refused to strike out the challenged paragraphs. While the defendants argued that paragraphs 24 to 28 were not material facts but, at most, particulars of the wrongfulness of the plaintiff's detention, the court found no basis to strike them from the pleading at this stage.
On the particulars question, the court considered the proper purpose of a request for further and better particulars. The relevant test is whether particulars are reasonably necessary to identify the case to be made out at trial, not to compel a party to disclose the evidence by which that case will be proved. The court noted that the distinction between identifying the case and revealing the evidence supporting it can be a fine one, and that whether a party must go further and outline their evidence depends on what is necessary to guard the other side against surprise.
The court acknowledged there was some merit on each side. The plaintiff's original letter of particulars had answered the bulk of the 200-odd requests, and the defendants' further demands appeared in several instances to be seeking evidence rather than proper particulars. However, the court identified a specific subset of questions that it considered fell within the proper scope of particulars. The plaintiff was ordered to answer those questions.
Costs of the Notice of Motion were awarded to the defendants in the proceedings.
Orders Made
- The application to strike out paragraphs 24 to 28 and related sub-paragraphs was refused
- The plaintiff was ordered to provide answers to the following specific questions from the defendants' request for particulars: questions 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
- Costs of the Notice of Motion were ordered to be the defendants' costs in the proceedings
Key Takeaways
- The proper function of particulars is to provide what is reasonably necessary to identify the case to be made out at trial, not to compel disclosure of the evidence by which that case will be proved.
- Where a request for particulars extends to revealing evidence rather than clarifying the nature of the claim, a court is unlikely to order compliance with those requests in full.
- A fine line can exist between particularising a case and disclosing the evidence to support it; the touchstone is what is necessary to guard the other party against surprise at trial.
- In dismissing the strike-out application, the Supreme Court declined to remove pleaded paragraphs that the defendants characterised as mere particulars rather than material facts, leaving their proper characterisation to be tested in context.
- Where a notice of motion raises disputes about both strike-out and particulars, and there is some merit on each side, courts may order a targeted subset of answers rather than granting the full relief sought.
Legislation and Cases Referenced
Legislation:
- Civil Procedure Act 2005 (NSW), s 56
- Uniform Civil Procedure Rules 2005 (NSW), rr 14.10, 14.28(1)(b) and (c)
Cases:
- A v New South Wales [2007] HCA 10; (2007) 233 ALR 584
- Allianz Australia Insurance Ltd v Newcastle Formwork Constructions Pty Ltd [2007] NSWCA 144
- Anchor Products Limited v Hedges (1966) 115 CLR 493
- Douglas & Anor v John Fairfax & Sons Limited & Anor [1983] 3 NSWLR 126
- Mummery v Irvings Pty Limited (1956) 96 CLR 99