PUBLIC TRUSTEE FOR THE NORTHERN TERRITORY v AUSTRALIAN EAGLE INSURANCE COMPANY LIMITED & ANOR

Supreme Court of the Northern Territory

Asche C.J.

13 January 1989 at Darwin

PLEADING - Application by first defendant to strike out Statement of Claim - writ named two defendants - Statement of Claim named only first defendant - whether Statement of Claim incomplete - whether one defendant entitled to know case against other defendant - principles of pleading

Case cited:

Playter's Case (1584) 5 Coke's Reports 34b

Counsel for Plaintiff: Solicitor for Plaintiff: Counsel for First Defendant: Solicitor for First Defendant:

P. Robinson McCormack & Co
N. Henwood Cridland & Bauer

jasc890002

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY OF AUSTRALIA

No. 940 of 1986

BETWEEN:

PUBLIC TRUSTEE FOR THE NORTHERN TERRITORY

Plaintiff

AND:

AUSTRALIAN EAGLE INSURANCE COMPANY LIMITED

First Defendant

AND:

ROBERT RANDALL

Second Defendant

CORAM:	Asche C.J.

REASONS FOR JUDGMENT
(Delivered the 13th January 1989)

The application is that the statement of claim of the plaintiff against the first defendant be struck out.

The matter at issue is a very narrow one.	The plaintiff issued a writ against the firstnamed defendant and against a second defendant.	In the endorsement to the writ, so far as relevant, appear these words:

"In	particular, the plaintiff's claim is for payment of a death benefit in the amount of
$41,144-00, payable under the terms of the said policy.	Further, and in the alternative, the plaintiff claims damages for breach of the said policy.	Further, and in the alternative, the plaintiff's claim is against the second defendant for damages for negligence as agent of the deceased."

The plaintiff sued as trustee of the estate of the deceased and there is no doubt as to the nature of its claim against the firstnamed defendant.	It is claiming on a life insurance policy made between the deceased and the first defendant as insurer.

Subsequently the plaintiff issued a statement of claim which is specifically headed "Statement of Claim against the First Defendant".	In that statement of claim the plaintiff again sets out that it sues in its capacity as trustee of the estate of the deceased, and it refers to a policy of insura·nce entered into by the deceased and the first defendant, and it recites that that policy was in force on the death of the deceased and it recites that the plaintiff has requested payment of the sum involved in the policy and that the first defendant has not made that payment.	A simple issue between the plaintiff and the first defendant.

Now, the first defendant, by the summons before the Court today, asks that the plaintiff's statement of claim be struck out because there is no mention of any cause alleged against the second defendant.	It is the argument of the first defendant that the pleading is incomplete, and that the first defendant is entitled to know what case the plaintiff makes against the second defendant, and it is put that until the first defendant knows what case the plaintiff makes against the second defendant the first defendant may be restricted in the defences which it can take.

Neither counsel have been able to find any case law on the specific question as to whether or not, where a writ names two or more defendants, a statement of claim should encompass the case against all the defendants.	I think that that is plainly because the principle is simple enough; what a defendant should know by the pleading is exactly what is the case alleged against it; so that the defendant may be able, properly and adequately, to frame a defence.	That is what the plaintiff has done here.

If the plaintiff subsequently issues a statement of claim against the second defendant or endeavours to amend this present statement of claim to do so it may well be in peril of costs.	But it may be that the plaintiff has elected not to pursue its claim as against the second defendant.

There is nothing in the authorities, as I see them, which suggests that, because a writ is issued, the endorsement of which refers to more than one defendant, it is necessarily incumbent on the plaintiff to issue a statement of claim encompassing all the defendants named.
Obviously, that would be the normal process, otherwise the writ would not be issued.	But, if the plaintiff chooses to proceed against one defendant only, then, subject to the usual risks which it runs in taking that course, it seems to me that it may proceed, and issue a statement of claim which encompasses the case as against that defendant, and does not include any case against any other defendant.

And if that is so, the defendant against whom that statement of claim is issued is bound to file a defence, if indeed it wishes to defend the action; and provided that the statement of claim adequately sets out the case against that defendant, it is not entitled to insist that a statement of claim be issued against other defendants or that the statement of claim against it should include also the matters alleged against other defendants.

The fundamental rules of pleading have been established for hundreds of years and it is sufficient to refer to Playter's case (1584) 5 Coke's Reports, 34b, where it is stated that:

"The declaration ought to reduce the generality of the writ to particularity and to declare that which

is briefly touched in the writ in certainty	to which the defendant may have a certain answ r· and on which judgment may be given, quid oportet		uod certa res deducatur in judicium."

That is echoed in Daniels Chancery Practice, 7th Edition, at 360:

"Care must be taken in framing the statement of claim; that all the material facts on which the plaintiff relies are contained therein, so that the defendant is distinctly informed and made aware of the nature of the case he has to meet."

See generally: Williams - Supreme Court Civil Procedure pp. 84   -	88.

If the defendant is distinctly informed and made aware of the nature of the case he has to meet it seems to me that it is not open to him to object on the basis that there may be other causes against other defendants and that the plaintiff should inform him of the way in which those causes are alleged.	Provided that the defendant knows precisely what is alleged against it, it does not seem to me that the defendant need go any further or require the plaintiff to go any further.

Of course if the defendant, as part of its defence, alleges that some other person is responsible, or that it has some claim against some other person arising out of the issues between itself and the plaintiff, there are well trodden paths which the defendant may use to bring those matters before the court; but if the plaintiff does not rely

upon those matters and if the plaintiff is prepared to take the risk that it proceeds against one defendant only, that is the plaintiff's concern.

If, indeed, the plaintiff were to proceed against a second defendant with a second statement of claim, it may well be that the plaintiff would be in peril of costs and in peril of having some other penalty imposed for prolixity.

In this case, however, the position is quite
simple.

The plaintiff has issued a writ naming two defendants.	It has issued a statement of claim naming one only, and relying upon a series of allegations which, on the face of it, relate entirely to that defendant.	Those allegations have nothing to do with any other defendant.	If the plaintiff can prove those matters, there is a cause of action against the defendant which it names.

It therefore behoves that defendant to file a defence.	I notice that has been done.	So far as this application is concerned, I see no reason why the statement of claim should be struck out.	The application is dismissed.