Singh v Australia and New Zealand Banking Group Ltd [2013] FJHC 81; HBC230.2009 (27 February 2013)

IN THE HIGH COURT OF FIJI AT LAUTOKA
CIVIL JURISDICTION

Civil Action HBC 230 of 2009

BETWEEN

NIGEL RAJ PAL SINGH
of 14/2 Bruce Street, Blacktown 2148, New South Wales, Australia, Unemployed
PLAINTIFF

AND

AUSTRALIA & NEW ZERALAND BANKING GROUP LIMITED
having its registered office at Level 2, Queen Street, Melbourne, Victoria, Australia.
DEFENDANT

Appearances: Mr. Roneel Kumar of Mishra Prakash & Associates for the Plaintiff/Respondent
Mr. Faizal Hanif of Munro Leys for the Defendant/Applicant

Date of Ruling: Wednesday 27 February 2013

RULING

BACKGROUND

[1]. By summons dated 01 October 2010, the defendant (“ANZ”) seeks further and better particulars of the plaintiff’s (“Singh”) statement of claim dated 12 December 2009 and filed herein on 29December 2009.

[2]. The application is supported by the affidavit of Sharon Veu Morris sworn on 29 September 2009. Morris outlines that the writ of summons and claim were filed on 29 December 2009. ANZ’s lawyers (Munro Leys) filed an Acknowledgement of Service on 27 January 2010. On 08 February 2010, Munro Leys wrote to Singh’s lawyers seeking further and better particulars to paragraphs 1, 3, 5 to 11 and 13 to 15 of the claim. No particulars were provided and Munro Leys sent follow-up emails on 15, 20 and 23 September 2010. On 01 February 2011, Singh filed an opposing affidavit. Singh’s only ground of objection is stated as follows in paragraph 6 of his affidavit:

These documents in particular annexure “C” shows that the knowledge and necessary documents are already with the Defendant. I verily believe that all necessary documents and particulars are with the Defendants and this application is just a delaying tactic to prolong the matter.

[3]. Singh was a former employee of ANZ. He allegedly spent some twenty two years with the bank “under various contracts of service”. He served for the Bank in Papua New Guinea and Kiribati for sometime. In 2007, he was told to return to Fiji to take up the position of Manager Fiji in Lautoka. Relying on that, he came to Fiji and invested $16,000 on a property at Lautoka.

[4]. However, shortly after arriving, Singh was told to go to Suva – purportedly - for some project work. As it turns out, he was only to learn in Suva that the position of Manager Fiji did not exist. ANZ then made Singh “redundant and/or terminated his services and contract despite his objections”. Singh alleges inter alia in his claim that:

• (i) he had performed creditably throughout his ANZ career. However, no performance management report was ever carried out for him by ANZ. He was thereby denied a salary increase. And even when he left, ANZ only paid him a redundancy package based on his old salary rather than on a higher salary.
  
• (ii) there was a shortfall in the amount of employer contribution that ANZ paid for him to the Fiji National Provident Fund, between 1998 to 2007. The total amount of shortfall had accumulated to $42,598.00.
  
• (iii) ANZ failed to ensure that Singh was properly taxed. Although ANZ was deducting monies from Singh’s pay – purportedly - for tax purposes, ANZ “did not pay the same to the Tax Authorities”. “The Plaintiff claims (sic) from the Defendant in the sum of $20,686.00 in respect thereof and any penalties which the Plaintiff has incurred particulars of which will be provided before trial”.
  

(iv) ANZ has caused him to suffer humiliation, distress and hardship.

PARTICULARS SOUGHT BY THE DEFENDANT

[5]. The particulars sought by ANZ relate to the pleaded

(i) “contracts of service”.

(ii) encouragement to take up overseas posts.

(iii) advice that Singh would be given a contract and a position of Manager Fiji at Lautoka for three years.

(iv) expenditure on a property at Lautoka.

(v) request by ANZ to Singh to go to Suva for Project Work.

(vi) breaches on contract committed by the defendant.

(vii) entitlement to a Performance Management Review

(viii) obligation of ANZ to pay FNPF contributions and the alleged failure to meet those obligations.

THE LAW

[6]. The principles which guide the courts when considering whether or not to order for further and better particulars are clearly set out in the following extract of Byrne J's ruling in In the Estate of Harry Janson Ho [1993] FJHC 48:

The general principle governing the delivery of further and better particulars of any pleading is that the Court will order these if it is considered desirable to elucidate the issues to be tried and prevent "surprise" at the trial.

[7]. Further and better particulars are granted when the statement of claim, although disclosing a reasonable cause of action:

(i) lacks the necessary particulars of allegations of the type set out in Order 18 Rule 11 (1) to (7) or,

(ii) appears to be hidden in a wealth of prolixity and therefore difficult to understand and get at the issues (as per Pathik J in Prasad v University of the South Pacific [1998] FJHC 254; [1998] 44 FLR 272 (9 November 1998), when the cause of action).

[8]. In Speedy Parcels Ltd v Johns (1989) (CP 269/89, unreported judgment of the High Court delivered on 1 December 1989, Master Hansen of the New Zealand High Court endorsed the principles underlying the English approach to further and better particulars:

The first is to enable the other side to know what evidence they ought to be prepared with and to prepare for trial (per Cotton LJ in Spedding v Fitzpatrick (1888) 38

Ch. D 410 page 413).

The second is to limit the generality of pleadings (per Thesiger J in Saunders v

Jones [1877] UKLawRpCh 345; (1977) 7 Ch. D 435).

Thirdly, to limit and define the issues to be tried and as to which discovery is required

(per Vaughan Williams LJ in Millbank v Millbank [1900] 1 Ch. D 367 page 385).

[9]. Usually, the Courts will not order particulars where, to require them, would be oppressive or unreasonable. Courts will also refuse to make such orders if the information sought is not in the possession of either party and/or the information could only be obtained through great difficulty.

[10]. The New Zealand Court of Appeal in Price Waterhouse v Fortex Group Ltd (1998) (CA 179/98, unreported judgment delivered on 30 November 1998), at pp 17-18 of the Court's judgment – reiterated the importance of proper pleadings thus:

It has become fashionable in some quarters to regard the pleadings as being of little importance...Any such view is misguided. Pleadings which are properly drawn and particularised are, in a case of any complexity, if not in all cases, an essential road map for the Court and the parties. They are the documents against which the briefs of evidence are or should be prepared. They are the documents which establish the parameters of the case, not the briefs of evidence.

Pleadings should be read as conveying what they would reasonably convey, in the context of the case, to a sensible legal mind. Even less are we advocating prolixity of pleadings, or the raising of every conceivable cause of action irrespective of its potential for success; this type of pleading often contains the additional flaw of overlooking R114 which requires each cause of action to be separately pleaded. What we are saying is that both the Court and opposite parties are entitled to be advised of the essential basis of a claim or defence and all necessary ingredients of it, so that subsequent process and the trial itself can be conducted against recognisable boundaries. Neither the Court nor opposite parties should be placed in the position of having to deal with a proposition of whose substance adequate notice has not been given in the pleadings.

[11]. In Fitzpatrick Property Syndicate v White Fox & Jones [2009] NZHC, Associate Judge Osborne said at para [4]:

[4] I adopt these as principles applicable to the consideration of any application for

further and better particulars :

(a) The primary purpose of pleadings is to define the issues and thereby to inform the parties in advance of the case they have to meet and so enable them to take steps to deal with it.

(b) The statement of claim should state the claim in each case so that the ' Court has sufficient clarity and detail to understand the issues it has to rule on, and the defendant knows the case which is to be met and is able to prepare for trial.

(c) Specifically required by r 5.26(b) are such particulars '...of time, place, amounts, names of persons, nature and dates of instruments, and other circumstances as may suffice to inform the Court and the party or parties against whom relief is sought of the plaintiff's cause of action'.

(d) The pleadings must set out the facts or circumstances relied upon as giving rise to each cause of action alleged and the relief claimed as a consequence.

(e) The nature and level of particulars will depend on the facts of the particular case.

(f) The distinction between particulars and interrogatories is important, particulars are matters of pleadings designed to make plain to the opposite party the case to be raised whereas interrogatories are sworn statements of facts, procured by the opposite party to assist that party in proving his or her case.

(g) A request for further particulars can be resisted if the request goes beyond the scope of particulars and probes for evidence.

(h) Questions which a Court can usefully ask itself are:

(i) has sufficient information been provided to inform the other party of the case they have to meet and to enable them to take steps to respond?

(ii) is there a real risk that the other party may face a trial by ambush if

further particulars are not provided?

(iii) is the request oppressive or an unreasonable burden upon the party concerned?

(i) In considering whether any party is likely to be taken by surprise, the Court is entitled to have regard to the fact that briefs of evidence will be exchanged well in advance of the hearing (see Petrocorp Exploration Ltd v New Zealand Refining Co Ltd (1993) 7 PRNZ 53). The Court is also entitled to take into account its ability in cases with substantial evidence to provide for defendants to have extended periods of time to digest and respond to the evidence of the plaintiff.

COMMENTS

[12]. As noted above, Singh's only objection is that ANZ has all the necessary documents and particulars.

[13]. This however is not a valid ground of objection because the purpose of the statement of claim is still to give notice of the plaintiff's allegations so that the defendant knows what case he or it has to meet.

[14]. There is a view, and which view I believe is in accordance with principle, that if a party is unable to particularize his allegations, then the allegations ought not to be made (see Nand v Williams (No2) (9/9/98), as per Master Kennedy–Grant, of the New Zealand High Court, Auckland CP429/971).

[15]. In Public Trustee v Mahar 7/2/90, Neazor J, HC Wellington, CP818/88, the Court observed at 4:

" '...it is no objection to a request for particulars of a pleading that knowledge of the matter is in the hands of the opposing party; nor that the defendants are trying to bind the plaintiff to a definite story. The purpose of the statement of claim is to give notice of what the plaintiff alleges so that the defendant knows what has to be met, is not taken by surprise at trial, and can prepare evidence within the framework of the issues raised and defined by the statement of claim: the Supreme Court Practice 1988 para. 18/12/44'.

[16]. Para 18/12/44 of the Supreme Court Practice 1988 says:

It is sometimes urged as an objection to an application for particulars that the applicant must know the true facts of the case better than his opponent (Harbord v Monk [1878] UKLawRpCh 267; (1878) 38 L.T. 411; Keogh v Incorporated Dental Hospital of Ireland [1910] 2 Ir. R. 166, C.A.). But 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. Particulars therefore will be ordered whenever the Master is satisfied that without them the applicant will not know what his opponent will try to prove against him at the trial.

[17]. For the record, I note that, amongst the orders that ANZ seeks, are some which would involve Singh having to identify persons who would have dealt with him (Singh) purportedly on behalf of ANZ and who would have made oral representations (to Singh) which (as Singh may allege) bind ANZ contractually.

[18]. I accept that it is well established that if the only object of a summons for further and better particulars is to obtain the names of witnesses or some other clue to the evidence of the other party, the summons will be dismissed (Temperton v Russell (1893) 9 T.L.R. 319, p. 321.

[19]. However, if the information sought is clearly necessary to enable the applicant to properly prepare for trial, the [particulars must still be given even though it discloses some portion of the evidence on which the other party will rely at trial (Marriott v Chamberlain [1886] UKLawRpKQB 89; (1886) 17 Q.B.D. 154 at 161)[1].

[20]. I am convinced that in this case before me, Singh needs to particularize to ANZ whether the "various contracts of service" that he pleads and relies on includes some oral contracts and if so, the particular identities of the persons involved.

CONCLUSION

[21]. After considering all, and having reviewed the statement of claim and the submissions of both counsel, I hereby grant Order in Terms of all the Orders for further and better particulars that ANZ seeks through its summons dated 01 October 2010.

[22]. I also award costs to ANZ Bank which I summarily assess at $650 (six hundred and fifty dollars).

[23]. Accordingly, the plaintiff is hereby ordered to serve on the defendant within 14 days of the date of this Order further and better particulars as sought in the said summons for paragraphs 1, 3, 5, 6, 7, 8, 9, 10, 11, 13.1, 13.2, 13.3, 13.4, 13.5, 14 and 15 of the statement of claim. This case is now adjourned to 13 March 2013 for mention at 8.30 a.m.

...............................
Master Tuilevuka

At Lautoka
27 February 2013.

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^[1] See para 18/12/44 White Book.