MS MANAK, C S NAIDU AND K SINGH V HUTT & CITY TAXIS LIMITED HC WN CIV 2007-485-2042

MS MANAK, C S NAIDU AND K SINGH V HUTT & CITY TAXIS LIMITED HC WN CIV 2007-485-2042 30 October 2007IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY CIV 2007-485-2042 CIV 2006-485-2935BETWEEN MALKIAT SINGH MANAK (NELSON), CHANDRA SHEKAR NAIDU AND KAMLESHWAR SINGH Plaintiffs AND HUTT & CITY TAXIS LIMITED Defendant Hearing: 30 October 2007 Appearances: R C Laurenson - Plaintiffs J D Haig - Defendant Judgment: 30 October 2007ORAL JUDGEMENT OF ASSOCIATE JUDGE D.I. GENDALLSolicitors: Gibson Sheat, Lawyers, PO Box 2966, Wellington Gillespie, Young, Watson, Solicitors, PO Box 30940, Lower Hutt[1] Before the Court are several matters. [2] It is convenient first to deal with an application for consolidation of these two proceedings which has been made by the plaintiffs. This application was notionally opposed by the defendants. [3] Before me today, however, I understand from Mr Haig, counsel for the defendant, that the defendant is likely to agree to consolidation subject to the outcome of a further particulars application which I will deal with shortly. [4] The grounds advanced by the plaintiffs in support of their application for consolidation are broadly that, the parties in the two proceedings are precisely the same and the issue giving rise to both proceedings is also the same. This is namely that the defendant company has allegedly failed to fairly allocate jobs amongst the various taxi operators who have been operating under its umbrella. [5] Counsel for the plaintiffs also notes that in the original proceeding which sought an order placing the defendant company into liquidation, compensation for the alleged breaches was sought and the second proceeding is effectively a damages claim for the same breaches. [6] That said, I am satisfied that this is an appropriate matter for an order for consolidation to be made. [7] I appreciate that counsel for the defendants has in effect requested that this consolidation order might wait. I see no reason for this to occur. An order is now made therefore that the proceedings contained in CIV 2006-485-2935 and in CIV 2007-485-2042 are consolidated. [8] The second matter before the Court relates to a notice which the defendants have issued to the plaintiffs requesting further and better particulars of the plaintiffs' claim in CIV 2007-485-2042. Before the Court today counsel for the parties accepted that matters could proceed on the basis that this was regarded as a formalapplication by the defendant for further particulars of the plaintiffs' claim. I now deal with this application on this basis. [9] In the application the defendants seek further particulars of paragraphs 4, 7 and 8 of the plaintiffs' statement of claim. [10] In so far as paragraph 4 is concerned, the defendants request that the plaintiffs: "Identify precisely when each of the first, second and third abovenamed plaintiffs commenced operating a taxi with the defendant."[11] Paragraph 4 of the statement of claim noted that the first-named plaintiff had been operating a taxi with the defendant for approximately 16 years, the second- named plaintiff for approximately 6 years and the third-named plaintiff for approximately 18 years. [12] The plaintiffs' claim in this proceeding is for damages for a period of the last approximately 6 years. When the various plaintiffs may have commenced operations with the defendant company would presumably be a matter known to the defendant company itself. In any event, the important period for the purposes of this proceeding would seem to represent the last 6 years. In my view, the further particulars sought with regards to this paragraph 4 of the statement of claim are unnecessary. No order is to be made with respect to this. [13] Turning now to paragraph 7 of the statement of claim, here the defendants seek specific and detailed descriptions of how the defendant has not fairly allocated taxi jobs among the applicable operators at the relevant times. In addition, the defendant seeks particulars as to dates, frequency and all other details to show the defendant has given preference to one or more operators to the detriment of others. Further the defendant requests the plaintiffs to set out how the alleged preference has been detrimental to each of the plaintiffs and requests that the plaintiffs identify why they have suffered any detriment.[14] The purpose of pleadings as opposed to interrogatories is that pleadings are clearly designed to make plain to the opposite party the case to be raised. Interrogatories, however, which are sworn statements of fact procured by the opposite party to assist that party in proving his or her case relate clearly to proof of the claim in question. Particulars of course deal solely with pleading. [15] In the present case, the further particulars sought of paragraph 7 of the statement of claim relate to the facts in question and matters of proof and in my view are more properly the subject of interrogatories rather than further particulars. [16] As I see it the pleading in paragraph 7 of the plaintiffs' statement of claim is sufficient to properly inform the defendant of the claim being made against it. [17] I reject the defendant's claim for further particulars of paragraph 7. [18] So far as paragraph 8 of the statement of claim is concerned, however, here the defendant requests further particulars from each of the individual plaintiffs of the loss of income or revenue claimed in the 6 years prior to the issue of these proceedings. [19] Paragraph 8 is a rather clipped pleading. It states:"As a result of the breach referred to in the preceding paragraph, each of the plaintiffs has suffered loss or income and revenue for the six years prior to the date of the issue of these proceedings in the amount of $100,000."[20] So far as pleadings as to damages are concerned McGechan on Procedure at paragraph HR185.10 notes that for claims to general damages particulars are not generally ordered (New Zealand Times Company v Wellington Publishing Company(1914) 33NZLR907) whereas for claims of special damages particulars are customarily ordered – Flemming v Bank of New Zealand [1900] AC577. [21] In the present case if it is the position that the plaintiffs are seeking special damages from the defendant in their pleading then there can be little doubt that further particulars of those damages should be provided.[22] That said, I am satisfied that the defendant's request for further particulars in so far as paragraph 8 of the statement of claim is concerned is justified here. [23] An order is now made that the plaintiffs within 20 working days of the date of this judgment are to provide to the defendant further and better particulars of paragraph 8 of the statement of claim to set out for each of the individual plaintiffs' particulars of the loss of income or revenue in the six years prior to the issue of the proceedings for which they are bringing this claim. [24] That now deals with the further particulars application. [25] Counsel also before me today went on to indicate that some additional directions towards trial might be required. [26] The defendant is to file and serve a statement of defence within 30 working days of today. [27] Both counsel appeared to accept that this case is likely to occupy a trial period of 4 or possibly 5 days maximum. [28] That said the Registrar is now directed to liase with counsel to set this matter down for a hearing, (4 or 5 days are required) at the first available date after 1 March 2008. [29] Counsel advise that discovery and inspection has been completed. [30] A direction is made that any further interlocutory applications in this matter are to be filed and served within 30 working days of today. [31] The standard trial directions contained in Rule 441B-I and Rule 441M-Q are to apply. [32] The default setting down date in Rule 434(5) is to apply.[33] Leave is reserved for any party to approach the Court further on 3 days notice if further directions may be required.'Associate Judge D.I. Gendall'