Pacific Green Industries (Fiji) Ltd v Sun Insurance Company Ltd [2006] FJHC 60; HBC070.2005 (9 August 2006)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. 70 OF 2005

NO. 151 OF 2006

BETWEEN

PACIFIC GREEN INDUSTRIES (FIJI) LIMITED
Plaintiff

AND

SUN INSURANCE COMPANY LIMITED
Defendant

Appearances: Samuel K. Ram for the plaintiff
Mishra Prakash & Associates for the defendant

Hearing: 2 August 2006
Decision: 9 August 2006

JUDGMENT
(On Summons for Particulars)

[1] Before me is a Summons for Particulars filed by the plaintiff on 25 July 2006. The application is opposed. There is no serious dispute about the function of particulars. I am guided by the principles set out in The Supreme Court Practise 1995, notes at 18/12/1.

[2] One of the grounds raised by the defendant in opposing the summons is that "a great deal of the information sought is in the control of the plaintiff and it is only at the eve on a second trial that this is being sought. We ask that the application to be dismissed with costs" – page 2 defendant’s submission dated 2 August 2006.

[3] Whether the information sought is in the control of the plaintiff is immaterial – each party is entitled to know the outline of the case that his adversary is going to make against him, and to bind him down to a definite story: see 18/12/24 (7) supra. However there is merit in the submission, that given that the particulars are sought on the eve of the second trial, it ought to be dismissed.

[4] On 26 June 2006 I gave an oral decision on amendment and adjournment. By that day, the plaintiff was aware of the facts contained in the defendant’s amended statement of defence. It waited until 17 July – twenty days after that decision and after filing a reply to the amended statement of defence, to write to the defendant requesting the particulars sought. These were not provided before 25 July hence the filing of it’s summons.

[5] By it’s letter dated 27 July 2006, annexed in the affidavit opposing the summons, the defendant submits that it has sufficiently provided the particulars sought. Where the particulars sought have not been provided, it maintains that it is not required to provide or disclose evidence which it submits is being sought under the guise of particulars. I agree.

[6] The nature of the distinction between fact and evidence is often difficult to apply. The example discussed by the learned author of Australian Civil Procedure 4th edition at page 182 provides a simple illustration by example of the distinction between fact and evidence, and I quote:

"To take an obvious example, in an action for negligence, the plaintiff must prove a duty of care and a breach of that duty by the defendant. The plaintiff alleges the duty of care and the defendant’s breach of it. The facts that constitute the breach are evidence. If, for example, the defendant owes the plaintiff a duty to provide a safe system of work, facts that the defendant maintained machinery by a particular ineffective method are evidence. The ultimate fact in support of the breach of duty is, inter alia, that the defendant failed to properly maintain the machinery. What constitutes the actual impropriety is evidence".

[7] A fact which is relevant only to establishing an ultimate fact is evidence. Those facts must not be pleaded. I must decide what facts constitute the defence and what facts go to prove the existence of those facts. Only the former facts are required to be alleged in the pleadings, since the latter class of facts are evidence.

[8] Denman CJ explained the nature of the distinction between fact and evidence in Williams –v- Wilcox, [1838] EngR 305; 112 E. R. 857 at 863 referred to in the above text on the same page as follows:

"It is an elementary rule in pleading that, when a state of facts is relied on, it is enough to allege it simply, without setting out the subordinate facts which are the means of producing it, or the evidence sustaining the allegation ...It is true that this mode of pleading does not disclose to the defendants the case on which the plaintiff relies: but to object to it on this ground, is to misconceive one object of pleading, and to forget another: the certainty or particularity of pleading is directed, not to the disclosure of the case of a party, but to informing the court, the jury, and the opponent of the specific proposition for which he contends, and a scarcely less important object is the bringing the parties to issue on a single and certain point, avoiding that prolixity and uncertainty which would very probably arise from stating all the steps which lead up to that point".

[9] It is these principles that I apply. Having considered the particulars sought I am of the view that the defendant has provided the particulars it is required to provide. My conclusions pertaining to the particulars sought in the amended defence are outlined beside the paragraphs of the defence below:

6 (a) - defendant’s reply suffices

6 (b) - defendant’s reply suffices

6 (c) - defendant’s reply suffices

6 (d) - the particulars sought amounts to evidence

6(e)(i) - the facts are adequately provided in the amended defence and in the defendant’s reply to the request for particulars

6(e)(ii) - the particulars sought amounts to evidence

Second paragraph 6 - the defendant has undertaken to voluntarily provide particulars of the express conditions allegedly breached. In respect of the alleged implied conditions, I have upheld learned counsel for the defendant.

7 - the facts contained in the amended defence are adequate. The defendant has also undertaken to inform the plaintiff of the express conditions breached.

8 - amounts to evidence and adequately answered by the defendant

9 - defendant has answered. The additional information sought amounts to evidence.

11 - this appears to have been provided by way of a report to the plaintiff and is said to be contained in the proposed Exhibit List not yet before the Court.

[10] The details sought of persons referred to in paragraphs 3, 10, 11, 13, 29, 30, 32 and 33 of the amended defence amounts to a request that defendant discloses it’s evidence. The plaintiff is not entitled to this information.

[11] I am also concerned about the delay in making the application. In my judgment, the application comes far too late. I adopt the words of Lord Denning in Astrovlanis Compania Naviera SA –v- Linard [1972] 2 All ER at page 649 where his Lordship said, "Without going into the rights or wrongs of the matter, this application should have been made as soon as the defence was delivered". In this case, that would be the amended defence.

[12] The adjourned trial dates of 14, 15, 16 and 17 August 2006 were fixed on 26 June. Everybody is, or should be ready for trial. The Pre-trial Conference Minutes have now been filed. The application has been made at a very late stage, and there might be a risk that the dates fixed for trial may have to be vacated. The plaintiff was aware of the adjourned trial dates on 26 June. It ought to have taken steps much earlier than sit on it’s hands until 17 July.

[13] The plaintiff’s application is dismissed, first, on the ground that it comes far too late; and second, because the particulars sought which have not been provided amounts to evidence which the defendant’s are not required to provide. I award costs of the application to the defendant assessed in the sum of $500.00.

Gwen Phillips
JUDGE

At Lautoka
2 August 2006