Stewart v Commonwealth of Australia [2001] ACTSC 84 (24 August 2001)

Last Updated: 11 June 2002

Christopher Robert Stewart v Commonwealth of Australia [2001]

ACTSC 84 (24 August 2001)

CATCHWORDS

PRACTICE AND PROCEDURE - Employment dispute - Whether particulars can be requested when a pleading raises a question of law rather than fact - Reasonable request for clarity in defendant's defence pleadings.

Civil Procedure ACT

Public Service Act 1999

Drane v Evangelou [1978] 1 WLR 455

Sims v Wran [1984] 1 NSWLR 317

Williams v Milotin [1957] HCA 83; (1957) 97 CLR 465

No. SC 518 of 2000

Coram: Master T Connolly

Supreme Court of the ACT

Date: 24 August 2001

IN THE SUPREME COURT OF THE )

) No. SC 518 of 2000

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: CHRISTOPHER ROBERT STEWART

Plaintiff

AND: COMMONWEALTH OF AUSTRALIA

Defendant

ORDER

Coram: Master T. Connolly

Date: 24 August 2001

Place: Canberra

THE COURT ORDERS THAT:

1. The defendant provide further and better particulars of it's defence on or before 7 September 2001.

2. The defendant pay the plaintiff's costs of and incidental to this application.

1. This is an application by Notice of Motion pursuant to Order 23 rule 7 for further and better particulars of the Commonwealth's defence. The substantive action is a claim for damages arising from an employment dispute. The common facts are that the plaintiff, in May 2000, had a series of conversations with officers of the Commonwealth in relation to his employment in the position of Director General of Communications and Public Affairs in the Department of Defence. It is the plaintiff's case that this amounted to an oral contract for the position. It is common ground that from 22 May 2000 the plaintiff attended the Department and undertook duties related to that position. It is also common ground that on 1 June the Secretary of the Department wrote to the plaintiff to inform him that he would not be offered the position.

2. The plaintiff has brought an action for damages pleaded on the basis of breach of contract, and in the alternative on estoppel. It is pleaded in paragraph 6 of the statement of claim that the defendant:

"..represented to the plaintiff that subject only to certain formalities the defendant would employ the Plaintiff for two years from 1 June 2000 at the top level of the SES Band 1 range of salaries in the position of Director General, Communications and Public Affairs within the Department of Defence".

3. It is then pleaded that in reliance of this representation the plaintiff commenced work with the defendant, and did not take up alternative employment, and that on 1 June 2000 the defendant wrongfully refused to complete the formalities for his appointment.

4. The defendant has put in a defence, and it has defended paragraph 6 by stating:

"The Commonwealth denies the allegations of fact contained in paragraph 6 and says further that the plaintiff was only able to be employed by the Commonwealth in accordance with the Public Service Act 1999."

5. Mr Crowe, for the plaintiffs, said that this was understood by the plaintiffs to be a denial of the facts pleaded to establish the representation giving rise to the estoppel, and further a pleading that, even if the facts were proven, an estoppel would not be found in law due to the operation of the Public Service Act 1999.

6. By letter of 7 May 2001 the plaintiffs requested further and better particulars to paragraph 6 of the defence in the following terms:

Does the Defendant allege that the Public Service Act 1999 as at 15 May 2000:

A Provided that a person could only be employed as an APS employee by a written document?

B Prevented a person from being employed as an APS employee orally?

If "yes" to 1A please identify each provision of the legislation relied upon in making this assertion.

If "yes" to 1B please identify each provision of the legislation relied upon in making this assertion.

7. The defendant replied to this letter on 9 May 2001 and stated that the Commonwealth declined to provide answers as "each of the particulars requested are not proper requests for particulars as they relate to matters of law." The plaintiff renewed the request by letter of 24 May 2001, stating that the request for particulars "seeks to determine whether the defendant alleges that employment under the Public Service Act can only occur by written document, or orally, or by either means." The defendant renewed their objection by letter of 30 May 2001, stating that:

"the entitlement to obtain particulars is limited to particulars of facts and it is the function of the court, not the parties to litigation, to draw the legal conclusions on the facts pleaded. (Drane v Evangelou [1978] 1 WLR 455)"

8. The matter thus comes before me on the question of whether particulars can be requested when a pleading raises a question of law rather than fact.

9. There is surprisingly little authority on this point. The authority relied upon by the Commonwealth in its letter, Drane v Evangelou [1978] 1 WLR 455 does not turn on this point, and seems to me at most to contain dicta from Lord Denning where he restates the proposition that a pleader must state material facts, and is not bound to assert the legal result. This proposition finds form in Order 23 rule 4. The position is well stated in Civil Procedure ACT where the learned author states [8115.20]:

"The cardinal requirement that only material facts must be pleaded means that, by definition, questions, conclusions or matters of law are (generally) not to be pleaded, ie alleged as facts in a pleading. Again, it is the function of the court, not of the parties, to draw the legal conclusions on the facts pleaded and proved: Drane v Evangelou [1978] 1 WLR 455."

10. The point is also made at [8115.1] where it is stated:

"As only facts are to be pleaded, it is not necessary to specify the particular cause of action or the defence in pleadings. Parties may, and often do, so specify, but it always and ultimately remains the function of the court, not the parties, to draw the appropriate legal conclusion on the facts pleaded and duly proved: Williams v Milotin [1957] HCA 83; (1957) 97 CLR 465 at 473-4".

11. While the above propositions are undoubtedly generally correct, it does not follow either that a point of law may not be pleaded, or that, if pleaded, no request for further and better particulars may be made of the point of law so pleaded. Indeed, the exceptional case where a matter of law should be pleaded is recognised by Order 23 rule 19 which states:

" Special matters to be pleaded:

When there are pleadings, the defendant or plaintiff (as the case may be) must raise by his or her pleadings all matters which show the action or counter claim not to be maintainable, or that the transaction is either void or voidable in point of law, and all such grounds of defence or reply ( as the case may be) as, if not raised, would be likely to take the opposite party by surprise, or would raise issues of fact not arising out of the preceding pleadings, as, for instance, fraud, Statute of Limitations, Statute of Frauds, release, payment, performance, facts showing illegality, any statutory provision requiring release, payment, performance, facts showing illegality, any statutory provision requiring contracts to be in, or to be evidenced by, writing, either by any law or at common law."

12. It seems to me that Order 23 rule 15 may be applicable in this matter, if the defendant asserts that the Public Service Act requires the asserted contract to be in writing. The defendant has by paragraph 6 of its defence asserted that "the plaintiff was only able to be employed by the Commonwealth in accordance with the Public Service Act 1999".

13. A statutory matter such as this may be, and on the view that I have taken of Order 23 rule 15, should be raised in the pleadings. But it also seems to me that the way it has been pleaded is ambiguous, and the plaintiff has therefore sought particulars, seeking to find out whether the assertion of the defendant is that a person may only be employed as a public servant pursuant to a written document, and asking which provision of the Act, or subordinate legislation, gives rise to this assertion.

14. It seems to me that this is an appropriate request for particulars. As Hunt J said in Sims v Wran [1984] 1 NSWLR 317 at 321, the fundamental purpose of particulars is that:

"..a party must be made aware of the nature of the case he is called upon to meet. The object of particulars is to save expense in preparing to meet a case which may never be put, and to make the party's case plain so that each side may know what are the issues of fact to be investigated at the hearing" (omitting cited authorities).

15. In that case His Honour also observed (at 322) that:

"Ordinarily speaking, particulars are concerned with the nature of the case which is to be made by way of evidence; particulars are not to be used, except in the extraordinary case, to ascertain the legal characterisation which a party places upon the facts and matters already identified in the particulars. Generally, it may be assumed that such argumentative matters or concepts will be either made clear in the pleadings or apparent from the facts and matters stated in the particulars supplied. If they are not, then the other party may in some cases be entitled to particulars in order to know the nature of the case he has to meet. But this situation will be rare."

16. This is, in my opinion, one such case. The plaintiff has asserted an entitlement for damages. The defendant has pleaded a defence in which a statutory defence is referred to. The defendant has chosen to plead law in addition to facts, but it has done so, in my view, quite properly in the manner referred to in Order 23 rule 15. The pleaded statutory defence, however, is ambiguous, and the plaintiff has made a request for further and better particulars, to ascertain what is asserted (must the employment contract be in writing) and where in the legislation such a requirement, if asserted, is to be found.

17. The first part of the request for further particulars is appropriate, as it goes to clarifying an ambiguity. The second aspect does seek a legal answer, but I am aware of no authority that establishes that such a request is improper, particularly, it seems to me, where the defendant has properly raised a legal issue in their pleadings. While requests for further and better particulars may not be used to generally require an opposing party to conduct legal research for a litigant, a request that a party particularise where an asserted statutory defence is to be found is not unreasonable, particularly in the context of legislation which may involve a complex array of subordinate legislative instruments having the force of law, that may not be easy to access, but should be within the clear knowledge of the defendant. If the Commonwealth as defendant asserts a statutory defence, it is not unreasonable to require the Commonwealth to identify the provision of the Act or subordinate legislative instrument that provides such a defence.

18. The notice of motion seeks an order that the defendant provide further and better particulars of its defence within 14 days. I so order. Costs should follow the event.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of Master T. Connolly.

Associate:

Date: 24 August 2001

Counsel for the Plaintiff: Mr Crowe

Solicitor for the Plaintiff: Pamela Coward & Associates

Counsel for the Defendant: Mr Hughes

Solicitor for the Defendant: Australian Government Solicitor

Date of hearing: 10 August 2001

Date of judgment: 24 August 2001