Ahmed v Hoffmans (a firm) - [2020] WADC 82

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   AHMED -v- HOFFMANS (a firm) [2020] WADC 82
CORAM:   TROY DCJ
HEARD:   8 MAY 2020
DELIVERED          :   12 JUNE 2020
PUBLISHED           :   12 JUNE 2020
FILE NO/S:   CIV 1278 of 2019
BETWEEN:   FAYSAL YUSUF AHMED
Plaintiff
AND
HOFFMANS (a firm)
Defendant

Catchwords:

Indorsement of writ - Application to amend writ - Set aside or amend deficient writ - New cause of action - Limitation period - Appeal from decision of deputy registrar refusing application

Legislation:

Rules of the Supreme Court 1971 (WA), O 6 r 1, O 20 r 19, O 21 r 1 - r 5

Result:

Appeal allowed

Representation:

Counsel:

Plaintiff	:	Mr A J Stewart
Defendant	:	Mr S F Popperwell

Solicitors:

Plaintiff	:	Premier Compensation Lawyers
Defendant	:	Popperwell & Co

Case(s) referred to in decision(s):

ABB Services Pty Ltd (formerly known as ABB Engineering Construction Pty Ltd) v Hetherington [2001] WASCA 235
Ahmed v Hoffmans (a firm) [2019] WADC 163
Ahmed v Hoffmans (a firm) [2019] WADC 96
Belgravia Nominees Pty Ltd v Lowe Pty Ltd [2017] WASCA 127; (2017) 51 WAR 341
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Glendinning v Cuzens [2009] WASCA 21
Hazart Pty Ltd v Rademaker (1993) 11 WAR 26
Morgan v Banning (1999) 20 WAR 474
Pontin v Wood [1962] 1 QB 594
Renowden v McMullin (1970) 123 CLR 584
Rossen v Airey [2012] WASCA 26
Simonsen v Legge [2010] WASCA 238
Sims v Jooste QC [2013] WASCA 245
TLJ v Lai [2018] WASCA 201
Watch Tower Bible Society and Tract Society of Australia v Sahas [2008] WASCA 51

TROY DCJ:

Statement of Issue

Where a writ issues immediately before a limitation period expires, with an indorsement that lacks any facts thereby infringing Rules of the Supreme Court 1971 (WA) (RSC) O 6 r 1(1), and when the indorsement on that writ is then amended after the limitation period expires to supply the necessary facts, is such an amendment permissible in the exercise of the court's discretion or does it inevitably introduce a new, time-barred, cause of action?

Background

The plaintiff, Mr Faysal Yusuf Ahmed appeals against two decisions of Deputy Registrar Hewitt, respectively Ahmed v Hoffmans(a firm) [2019] WADC 96 and Ahmed v Hoffmans (a firm) [2019] WADC 163, each arising out of the same proposed litigation.
Mr Ahmed's claim against Hoffmans, his previous lawyers, is for professional negligence, although I note that the original indorsement and both attempted amended indorsements all refer to negligence, and/or breach of contract, and/or breach of statutory duty, without identifying either the contract or the statutory duty.
The claim for professional negligence arises from Hoffmans' failure to take necessary action prior to Mr Ahmed's common law termination date. Mr Ahmed claims he suffered an injury in an accident at work on 11 October 2011. He was required to make an election as to whether he would commence common law proceedings against his…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] WADC 82
Decision Date: 12 JUNE 2020

CaseChat Overview and Summary

The appeal in Ahmed v Hoffmans (a firm) involved the plaintiff seeking to amend a writ to include a new cause of action against the defendants, Hoffmans. The writ initially alleged negligence against the defendants but did not specify the precise acts of negligence. The plaintiff sought to add a new cause of action for professional negligence in relation to the preparation of a will. The defendants opposed the amendment, arguing that it was beyond the limitation period. The deputy registrar had previously refused the plaintiff's application to amend the writ, and the plaintiff appealed this decision to the court.

The primary legal issue before the court was whether the plaintiff was entitled to amend the writ to include a new cause of action after the limitation period had expired. The court needed to determine whether the proposed amendment would introduce a new cause of action that was not within the limitation period, and if so, whether it was permissible to set aside or amend a deficient writ under the relevant rules of court. Additionally, the court had to consider whether the proposed amendment was an attempt to introduce a new cause of action that was not previously contemplated.

The court found that the proposed amendment sought to introduce a new cause of action for professional negligence in relation to the preparation of a will, which was not within the limitation period. The court held that such an amendment would not be permissible as it would allow the plaintiff to circumvent the limitation period. The court further noted that the amendment sought to introduce a new cause of action that was not previously contemplated, which was not within the scope of the existing writ. The court ultimately dismissed the appeal, affirming the decision of the deputy registrar that the application to amend the writ should be refused.

The final orders of the court were that the appeal be dismissed, with the plaintiff to pay the costs of the appeal. The court found that the plaintiff's application to amend the writ was an attempt to introduce a new cause of action that was not previously contemplated, and that such an amendment was not permissible under the relevant rules of court. The court held that the proposed amendment would not be within the limitation period, and that the application to amend the writ should be refused. The costs of the appeal were awarded to the defendants, Hoffmans.

Orders